The Changing Supreme Court - Prepared Remarks of Rabbi David Saperstein at the URJ Biennial Convention in San Diego, CA
Jane [Wishner], you have been a wise, tireless, and always good-humored chair of the Commission on Social Action, carrying on a great tradition not only of former chairs such as Bob Heller, but also the tradition of your parents, revered leaders of the Jewish community. I know how proud they must be of you. And your work with the incredible staff of the Commission headed by Rabbi Marla Feldman and the RAC staff led by Mark Pelavin – two of the American Jewry’s most eloquent and effective social justice leaders – has been inspiring.
That I join Professor Goodwin Liu, a brilliant rising star of American Constitutional thought, makes this evening especially exciting.
Tomorrow we will celebrate the 45th anniversary of the opening of the RAC building, but tonight we celebrate a very different kind of anniversary appropriate for our vital discourse – seven years to the day of the Supreme Court’s decision in Bush v. Gore – as compelling testimony as there is that shifts in the Supreme Court have altered the face of our nation.
As Justice John Paul Stevens observed of the decision, “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear: It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
But in the main we have forgotten this insight.
For most of us at this Biennial are part of a generation that took as a fundamental reality of America the proposition that if the legislative bodies – Congress, state legislatures, town councils – went too far, if the executive branch overstepped its bounds, we could rely on the courts, most particularly the Supreme Court, to strike down policies and executive actions that violated the Court’s robust interpretation of our fundamental rights and liberties.
Conversely when, beginning in the ‘60s, the legislative and executive branches moved in a manner to expand our fundamental rights and liberties, the High Court would find in the due process, equal protection, commerce, or spending clauses, constitutional justification for such actions. We have taken all this for granted as if it were an inevitable norm of American history and an essential characteristic of our nation.
The reshaping of our federal courts with the appointment of judges that are both younger and more conservative than those appointed by the last five presidents, including President Reagan and President George H.W. Bush, is tipping the Court in a very different direction.
And a brief look at historical context should shatter our complacency – for such dramatic shifts have occurred before.
One, the very conservative, property rights-oriented Supreme Court from 1905-1932, when the Court allocated to the federal government sharply curtailed powers, which the government often found checked when its efforts at legislation or regulation ran afoul of property rights, often with centrist-liberal Justices such as Oliver Wendell Holmes and Louis D. Brandeis writing some of the most powerfully eloquent dissents in history. A minimum wage, the NLRA, the Social Security act, or maximum hour laws would have been unthinkable to this Court in the early 20th century. As the New Deal began, however, the Court shifted, and in the economic arena upheld most of the major initiatives of the Roosevelt Administration, overturning some key decisions of the earlier Court. In the areas of civil liberties and civil rights, the Court changed more gradually. But when Earl Warren assumed the Chief Justiceship – and this is the second example – the Court’s expansion of civil liberties, the rights of defendants, civil rights, church-state separation, and the right to privacy was stunning. Justice Burger’s Court, in the main, continued the Warren Court’s approach, albeit later in its tenure it began to trim some of that expansion. (Justice Burger, a Mormon, was fascinated by Judaism, and I was honored to join the Chief Justice and his wife for lunch on his last day on the Court, where we discussed Jewish values, the Jewish community and his Court tenure.)
As the Rehnquist Court took shape, the Court was divided fairly evenly. By the late 1980s there were two clear conservatives, Scalia and Rehnquist, together with two moderate conservatives, White and Kennedy on one side; and two moderate-liberals, Blackmun and Stevens, and two robust liberals, Marshall and Brennan, on the other. There was one swing justice frequently in the middle. I won’t tell you who that was, but what she used to do on issues such as reproductive choice, civil rights, affirmative action, free exercise of speech, and the establishment clause was to side with the liberal bloc on the existence of certain rights, then turn around and side with the conservative bloc on the right of the states to regulate the exercise of those rights. This period began the reversal of a number of the Warren and Burger court decisions.
Under the Rehnquist Court, as the brilliant University of Chicago law professor, Cass Sunstein, has summarized it, the Court narrowed but did not eliminate affirmative action, campaign finance legislation, regulatory protections, the application of Roe v. Wade, and the ability of citizens to get into court to sue to enforce environmental regulations. At the same time, it limited the reach of the Commerce Clause and the 14th Amendment even as it reconceived federal-state relations to constrict Congressional authority, allowing them to chip away significantly at the Warren and Burger court interpretations of civil liberties and civil rights. It struck down key provisions of bills for which we fought hard. These included: the Violence against Women Act, the Americans with Disabilities Act (a civil rights bill drafted and strategized in our Religious Action Center conference room), and the Religious Freedom Restoration Act, in which our Movement not only played such a vital role in drafting, but which was passed while the 1993 Biennial was in session, with many of you responding to our request and helping to flood Senate offices with calls the day of the vote. On that issue you all made a profound difference, and I have never been prouder of our Movement.
While the Rehnquist Court did not always abandon wholesale the underlying legislation itself, with Justice O’Connor and sometimes Kennedy in the middle, it was the beginning of a retrenchment of potentially historic proportions. All in all, the Rehnquist Court invalidated three dozen congressional enactments – a record, as Cass Sunstein observes, unparalleled in the nation’s history.
Now we have the Roberts Court. While it is too early to know exactly where it lines up, we are seeing alarming shifts to the right. There are no longer Douglas/Marshall/Brennan liberals on the Court. The liberals are now quite similar to the old moderates like Stevens. Souter, Ginsburg, and Breyer are all of that ilk. Justice O’Connor was replaced by Justice Samuel Alito, whose first decisions place him noticeably to the right of Justice O’Connor and whom the last Biennial voted overwhelmingly and presciently to oppose.
The middle is no longer defined by Justice O’Connor but by Justice Kennedy, who had generally been to the right of Justice O’Connor. Part of their differences were differing ideologies on how to interpret the Constitution; part, their experience (O’Connor had served as a consensus maker as Senate Majority Leader in Arizona, while Justices Kennedy and Alito spent much of their formative careers on the bench); and part of it, personality. A telling snapshot: Very early in her career, when Justice O’Connor had a young family and was just entering politics, she remained deeply involved with the National Conference of Christians and Jews, firmly asserting how essential such an entity was in a pluralistic America. It represented a view of America that animated her politics and her jurisprudence, most especially her assertion that the Establishment Clause required that government should never endorse religion in a way as to make any citizen feel like an outsider because of his or her religious identity or practices.
Or to illustrate the shift more starkly, augmenting Professor Liu’s opening comments and again drawing on Cass Sunstein: in 1980 John Paul Stevens stood at the very center of the Court. Today, he is the left wing – and he has hardly changed at all.
You should note as well that as the Supreme Court has shifted, so too have many of the federal circuits. This is important, because beginning with Justice Rehnquist, the Supreme Court has taken demonstrably fewer cases than the Warren and Burger Courts, leaving the decisions of the federal appeals courts as the controlling law in many areas of the nation. So whoever sits on the federal courts in each circuit determines the law for tens of millions of citizens in that area of the country.
We have described vividly the significant impact of all these changes in the Supreme Court and other federal courts in a new Religious Action Center document to be released this week, “Our Rights in Peril: Why Religious and Jewish Organizations Can Not Afford to Sit Out the Debate on Judicial Nominations.”
You have heard of the impact of the Roberts Court’s brief tenure so far. Professor Liu laid out key decisions, showing how the Court and Constitutional doctrine has moved to the right; how the Scalia, Thomas, Roberts, Alito bloc, joined by Justice Kennedy, limited student speech, weakened the McCain-Feingold campaign finance reform law, upheld the federal Partial Birth Abortion Ban Act, limited prisoner rights and death penalty appeals, limited workers’ rights to contest discrimination, and restricted the ability of taxpayers to contest the President’s Faith Based Initiative. As the normally restrained Justice Breyer chided in a stinging dissent: “it is not often in the law that so few have so quickly changed so much.”
As is true with the Supreme Court generally, this Court is redefining our culture and politics as well as our law. In our culture wars in America, there are those who in pursuit of whatever goal they cherish would take shortcuts through our most precious First Amendment rights. These are timid people whose faith in the great American experiment of freedom has faltered. But when government approves of such policies, it radiates approval for doctrines so odious that in the end they threaten everything that has made America great.
Ironically, much of the energy criticizing the Court continues to come from the right. Conservative politicians win elections running against the so-called “liberal activist” courts. The far-right anti-Court coalitions have particularly focused their wrath, sometimes in quite horrifying rhetoric, against the perceived sell-out by Justice Kennedy because of his votes upholding privacy and reproductive rights, and limiting school prayer. And consider this: In the 24 5-4 decisions, astonishingly, Justice Kennedy was in the five-justice majority 100% of the time! In six, the liberal bloc prevailed; in thirteen the conservative bloc prevailed; in the others, the decision did not break on conservative-liberal lines. This pattern will likely continue with some wins and more losses in the Court’s willingness to abandon core New Deal/Warren-Burger Court decisions. If I had to predict (always a sucker bet), it is quite possible that in addition to this week’s 7-2 decision protecting the sentencing discretion of trial judges, the liberal bloc will prevail in this term’s decisions such as gun control and detainee rights.
But we will certainly lose others and – as you have heard, one more replacement, this time of a liberal – would decisively shift the High Court to the right.
What is threatened by one further shift to the right in the Court or hangs by a single vote today? Affirmative action; gun control; environmental regulations; campaign finance laws; the ability of citizens to get into court to protect their rights; privacy; reproductive choice; the regulatory powers of government agencies including the EPA, OSHA, the SEC, and the FCC; the ban on state endorsement of, and aid to, religion; and the limitations on the president’s ability to wage war.
So: two vital conclusions.
First, it is time for the mainline Jewish and Christian faith traditions to see that their prophetic mandate to be a moral goad to our nation requires that they engage in evaluating what impact nominated justices will have on our most fundamental rights and liberties and on the policies for which these groups have fought so hard.
Yet today in the Jewish community, only the National Council of Jewish Women (NCJW), through its remarkable Benchmark Campaign, and the Reform Jewish Movement (whose efforts are coordinated by the RAC) actively engage in evaluating federal and Supreme Court nominations (some other Jewish organizations opposed Judge Bork in 1987); only the Jewish Council on Public Affairs (which has not opposed any nominee yet), the NCJW and we have yet to hold formally that we will oppose those who are outside the mainstream of American law or those who would shift the balance of the Supreme Court or lower federal courts. Similarly, of all the mainline Jewish, Christian and other faith groups, only the Reform Jewish Movement and the United Methodist Church have taken a position that they will act in this regard – although many of the more fundamentalist and politically conservative faith groups have no such qualms and are actively engaged in these campaigns.
Therefore, we urge all national Jewish organizations and mainline religious denominations and faith groups to adopt and regularly utilize a formal process for considering whether to oppose judicial nominees and to play an active role in the judicial nomination and confirmation process.
The hesitancy of some religious groups to speak out on judicial nominations is rooted, in part, in the belief that it is the President’s prerogative to select and appoint nominees who share his or her beliefs. This is, of course, true – but our Constitution did not make that power absolute – hence the responsibility of the Senate to give its advice and consent. And unlike other Presidential appointees, federal judges serve in a separate branch of government and enjoy life tenure; typically their service extends far beyond the term of the President who appoints them. Individuals appointed by the judiciary today could easily remain active on the bench for three decades. This is one initial reason why the founders made the appointment subject to consent of the Senate. Judges’ long-lasting and far-reaching power is unique in our system of government and requires even greater scrutiny of nominees than for example, cabinet appointees or ambassadors.
Most of all, it simply makes no sense for us all to work together for a century to help shape legislation and support litigation that has made America a far freer, more just, equal and compassionate society – and then to sit on the sidelines of judicial nominations that result in our achievements being undone. And our new “Our Rights in Peril” offers what I hope will be heard as a clarion call to the Jewish community and mainline Christian community to join this battle for justice.
Second, if we can no longer depend on the federal courts and the Supreme Court to preserve our liberties nor to strike down legislation and executive actions that the Warren and Burger Courts would have considered unconstitutional, then it is even more imperative that the Reform Jewish Movement and the coalitions of decency of which it has been such a large part ensure that the Congress and state legislatures pass legislation that carries on our centuries-old vision of a fair and just society for all. I urge each and every one of you who are not yet part of our national legislative networks to sign up at www.rac.org or to come by the RAC table and sign up for those networks and to respond to the new national and state social justice initiatives that will be discussed later in the [Biennial] Convention. And no matter what your political views: conservative, moderate, liberal, Republican, Democrat, independent – whether you agree with the URJ’s positions or are critical of them – I urge you to engage more vigorously in supporting candidates and causes with which you do agree. For a century, the Jewish community has modeled civic engagement for the country, and in an era of growing cynicism about politics, that is needed more today than ever before.
And let us be clear – this is not a partisan issue. The heroes in this narrative – Warren, Burger, Souter, O'Connor, Blackmun, Brennan, even Kennedy – were, after all, ALL appointed by Republican presidents. The defeat of more conservative nominees played a key role in shaping the politics that resulted in more centrist appointments. For better or worse, the same dynamic drove President Clinton's nominees more to the middle than was the case with some of his Democratic predecessors. And it should be noted that every campaign that defeated a Supreme Court nominee had bipartisan support in the Senate.
So, by sitting on the sidelines and allowing very conservative justices and/or borderline qualified nominees to be confirmed without opposition, religious and Jewish communal organizations are encouraging the appointment of more such justices. In such circumstances, the need to rely on the President to ensure nominees who will not roll back our fundamental rights increases. On the other hand, engaging in political efforts to defeat such justices helps drive future appointments toward a more moderate position, no matter who the President. Responding to the call to be engaged in nomination battles therefore reduces the partisan political overtones of such decisions. Such a dynamic would be an important step toward the civility and bipartisan cooperation that is so urgently needed in American political and civic life today.
In this context, we must model as well civility between those of us with differing views. I’ll give one example: As many of you know, we run social justice skills-training seminars for 2,000 high school and college students every year at the Center, the remarkable Bernard and Audre Rapoport L’Taken Seminars, which the Jewish Education Service of North America in its evaluation concluded had a more lasting impact on young people than almost any other short-term program they had ever reviewed.
One consistent message that permeates these seminars is that there are those in that group – as there are at this convention, as there are throughout our Movement – who hold differing political viewpoints. Our Movement never suggests it speaks for all the members of our congregations, all our rabbis, all the members of NFTY (or at our conferences, all the members of our confirmation classes). Like every religious denomination, it speaks for the consensus views of its decision-making body, in our case our Biennial conventions and our large and representative URJ Board. No senator or congressperson thinks differently. And those who hold views different from our Movement’s consensus views are equally moral, caring Jews. So on the one hand, if our Reform Jewish Movement is to fulfill our age-old mandate to be a light to the nations, we cannot withdraw from the great foreign and domestic policy debates and decisions that shape the moral character of our nation. Yet, at the same time, as every page of the Talmud is filled with both majority and minority opinions, recognizing that eilu v’eilu divrei Elohim, these and these are the words of God, so too, we today need to model respect for our differences and must be willing to truly listen to, and learn from, each other.
And what does all this we have discussed tonight mean for us as Jews? Everything. There are some in this room who are old enough to remember when there were quotas barring Jews from public accommodations, colleges, country clubs, and corporate board rooms. It was precisely the Warren and Burger Court era expansion of the rights of women (and no group of women was better prepared educationally and culturally to take advantage of new opportunities than were Jewish women) and minorities – Jews, Catholics, blacks, Latinos, disabled, dissenters, atheists, and agnostics – against the too-often prejudiced views of many white male Anglo-Saxon Protestants that saw Jews move from the peripheries of the American society to the very center of American political, professional, academic and economic life. Here, precisely because of a robust interpretation of the Constitution’s bar against religious tests for office, its promise of free exercise of religion and its bar against establishment of religion, we Jews lived in the first nation in human history that proclaimed that our rights and opportunities as a citizen would not depend on our religious identity or practices. It took some generations for that promise to be made real by the Warren and Burger Courts. As a result, we Jews have known more freedoms and opportunities than we have ever known in our history and we must, and will not, let anyone turn back the clock, tarnish that which has truly made America great, or make us strangers in our own land again.