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Since the Civil War the Supreme Court has cycled through long conservative and liberal periods, but nothing quite like the polarization that marks the present Court. If, as seems likely, additional Justice(s) nominated by President Trump are confirmed, the Court’s shift to the right will probably accelerate and aid Republican efforts to roll back progressive economic and social laws and make it more difficult for the Democrats to enact progressive laws that will pass constitutional muster if and when they regain power. This is not to suggest that every Justice is an ideologue who invariably follows her political preference in deciding politically charged cases, but these preferences are increasingly clear and well known before appointment and the chance of a Justice changing her ideological allegiance after confirmation appears slim. This colloquy will explore the historic influence of the Court on the political process and the role it may play in the future.
As you might expect, there are a number of excellent books bearing on the matters we will discuss, but our only required reading, in addition to case and article excerpts to be listed for each session in the Syllabus section below, will be The Oath , by Jeffrey Toobin. Although published in 2012 and focused on the clash between the social, economic and political views of President Obama and Chief Justice Roberts, it is still an accurate and readable description of the Justices (excluding Justice Gorsuch), the Court and the issues before it. Jeffrey Toobin is a liberal but presents the issues fairly. He wrote another excellent book on the Court in 2007 called The Nine. We will also include other points of view in the Readings. There are also many popular books on the Supreme Court, the Justices and issues before the Court written by conservatives and legal scholars. The most comprehensive and balanced analysis that I am aware of is Uncertain Justice: The Roberts Court and the Constitution by Lawrence Tribe and Joshua Matz, 2014. But while good reading, it is too long and technical for this colloquy. The following link suggests the scope of the literature on the Court and the Justices: Popular Supreme Court Books. The readings for each session will be reproduced or noted in the Syllabus section below. But this colloquy covers dynamic evolving and legal issues so keep an eye peeled for possible updates and revisions.
David Snow is a former lawyer and federal Judge intrigued by the historic role of the Constitution and the Court in the governance of our country.
…the appointment of Justice Gorsuch restores the conservative 5/4 majority that held sway until the death of Justice Scalia. So far it appears from his votes and speeches that Justice Gorsuch can be expected to be at least as conservative as Justice Scalia and to line up with Justices Thomas and Alito on the Court’s far right. Justice Kennedy will continue to be the crucial swing vote on key issues like abortion and gerrymandering. But Chief Justice Roberts, although a committed conservative, could again surprise as he did in sustaining Obamacare if he is concerned that the Court could lose power and prestige by appearing too partisan. I plan to post or identify readings for each session but this is a dynamic time and the focus and reading list could change, so stay tuned.
The first session
…will provide a brief historical back ground. After what Jeffrey Toobin describes as a “glorious debut” under John Marshal, Toobin says that the Supreme Court was mostly “a malign force in American life´ for the next twelve decades, not a description that conservatives would endorse. But most historians would agree that conservatives’ interpreted the Constitution’s Commerce Clause, the 14th Amendment, and other constitutional provisions, to preclude federal and state economic and social legislation until the Great Depression and subsequent decades when progressive Justices reinterpreted these same provisions to vindicate the New Deal, integration, voting rights, civil rights laws and an expansion of individual rights.
The second session
…will explore the conservative counter revolution that began in the 1980s with the appointment of strong conservative Justices of whom Antonin Scalia was the most famous and influential. The Court’s right turn was deepened and reinforced with the appointment of Chief Justice Roberts and Justice Alito by President George Bush, and in the last decade the Court has sharply limited governmental power to regulate voting rights, control or limit the use of money in elections, regulate firearms and limit integration through affirmative action. The extent of the Court’s right turn was obscured, however, by the Court’s dramatic support of gay rights, due not only to Justice Kennedy but to a profound change in popular sentiment.
The third session
…will hone in on the issues before the Court and the country that will no doubt prominently include abortion rights and gerrymandering. The religious right, which provides key Republican support and has become a key constituent of Donald Trump’s base, remains a passionate and implacable abortion foe,. Gerrymandering pits states rights against voting rights, a battle conservatives have so far won in this Court. The gun control struggle may heat up after Las Vegas. We will also focus on the rationales the Justices have used to decide cases like “living Constitution,” strict construction,” “judicial restraint” and especially “originalism,” which now holds sway.
The final session
…will continue the discussion in the third session and, time permitting, will look at other current issues including protections for religious expression in the marketplace, affirmative action, the permissible scope of executive orders and other issues that will no doubt emerge before we meet.
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