Tag Archives: Supreme Court

What would a progressive Supreme Court look like?

Associate Justice Antonin Scalia’s death, paired as it is with the 2016 election, leaves the future of the Supreme Court hanging in the balance. Yet while it’s obvious what a conservative future for the court would look like, it’s unclear what direction a progressive court would take. While conservatives have used judicial activism in recent years to reshape American politics, it is, somewhat ironically, murky what an activist progressive agenda would be.

Conservative judicial activism

The myth that liberals favor an activist Supreme Court is popular on the right. It is based largely on the legacy of the Warren court, though the most frequently cited “activist” decision, Roe v. Wade, was decided during the conservative Burger Court, and was written by Justice Harry Blackmun, a Nixon appointee. A better reading of history, informed by works like Ian Millhiser’s “Injustices” and Erwin Chemerinsky’s “The Case Against the Court,” shows that for most of the court’s history it has been activist in favor of big business and powerful elites. The most famous decision in this vein is 1905’s Lochner v. New York, in which the court invented the “liberty of contract” to strike down labor regulations. (This sounds abstract, but Millhiser does the amazing service of drawing from contemporaneous documents to show how squalid working conditions at the time were.)

More recently, as well, conservatives on the court have had an activist streak. They have rewritten the Second Amendment, even though the previous interpretation had been settled for centuries. The court struck down key provisions in the Voting Rights Act, even though it had recently been repeatedly reauthorized by overwhelming majorities in both chambers of Congress. Conservatives on the court also memorably argued strongly in favor of striking down a president’s signature piece of legislation on grounds that most legal scholars (and Reagan’s solicitor general) found laughable. (Twice!) Conservatives on the court gutted Arizona’s popular public financing system. And the court has watered down Roe v. Wade, to the point where, for many women, the right to abortion exists in name only.

The point here is not to simply bring up the many qualms liberals have with the Roberts court, but rather note that in each case the court is exerting judicial activism: It is either overturning decades of precedent or it is exerting supremacy over the elected branches of government. Rather than favoring an “activist” court, for the last three decades, liberals have fought for a more constrained court, one that respects precedents on issues like abortion, guns and interstate commerce and empowers the elected branches of government and regulatory agencies.

That could all change. With the death of Antonin Scalia, a Democratic president — whether Obama or his successor, should Hillary Clinton or Bernie Sanders win in November — would have the opportunity to flip the court and also possibly to replace Ginsburg and Breyer, two liberal giants. It is also not unlikely that either Clarence Thomas or Anthony Kennedy could leave the court in the next five (or if a Democrat won in 2020, nine) years. But even without Thomas or Kennedy leaving, a Democratic president would shift the balance of the court inexorably toward the left. This would be the first time since 1968 (1968!) that the majority of SCOTUS justices were appointed by Democrats. The flip side is equally important: A Republican win would lead to two or even three decades of hegemony on the court. A conservative court would likely embrace Lochnerism and begin striking down labor, health and environmental protections with vigor.

What would a progressive court look like?

Having been out of power for so long, thinkers and writers on the left have tended to view the court largely as a threat to progressive values, rather than a means to promote them. (It is important not to overstate the power of the court to bring progressive change, as Gerald N. Rosenberg argues in “The Hollow Hope.”) This leaves us in an interesting situation: Progressives are finally poised to have control of the Supreme Court, but the progressive agenda largely consists of overturning bad rulings like Shelby, Heller, Parents Involved and Buckley.

The last time that Democratic nominees filled the Supreme Court, progressives eagerly proposed ways that the court could protect the oppressed. Legal scholar Frank Michelman, for instance, argued that basic rights to food, shelter and healthcare, are guaranteed by the Constitution. Today, such imagination seems less widespread, though the possibilities of an activist progressive court are endless.

Imagine if the court decided that the Hyde Amendment is unconstitutional, because abortion is a fundamental right and the government should facilitate, not restrict, access to abortion. Imagine if, rather than simply allowing school desegregation plans to be implemented, the court mandated more of them, since schools across the country are rapidly resegregating (see chart). Imagine if the court declared thatunequal funding for poor schools and schools that are majority students of color is not simply a gross injustice, but one that is in violation of the Constitution. Imagine a court that didn’t think confronting racial injustice was behind us, but rather in front of us. Or a court that opened the doorway to prosecute corporate environmental, labor and human rights abuses. Or a court that took seriously pay discrimination, unfair scheduling and wage theft, rather than limiting the ability of workers to file class action suits. The court could defend whistle-blowers and limit the surveillance state, which disproportionately preys upon people of color. By strengthening the Fourth Amendment, the court could rein in prosecutors and police officers, paving the way for decarceration.

A progressive Supreme Court could immediately end solitary confinement and would certainly find unconstitutional injustices in our current bail and public defensesystem. Further, in much the same way that the conservative court has worked to strengthen conservative causes by disempowering workers and empowering billionaires, a progressive court would empower cities to have more latitude in decision-making. Rather than just roll back Shelby, a progressive court could rule that voter ID laws and proof-of-citizenship requirements are unconstitutional. The court could also strengthen protections for workers trying to unionize or rule that right-to-work laws are unconstitutional. A progressive court would enshrine equality of political voice as a legitimate reason for campaign finance laws.

Progressives need an agenda for the court

Yet it’s unclear where many of the potential appointees stand on these issues, which of these areas to prioritize and what if any litmus test a Democratic president would apply on these issues. On the right, the situation is a bit different. As legal scholar Mark Tushnet notes, “Basically, anyone whom Ronald Reagan selected for the Supreme Court who had strong ties to the Federalist Society would have done just about what Scalia did.” Court watcher Jeffrey Toobin notes in “The Nine” that Bush had a very clear agenda for his appointees: Preserve the power of the president and begin dismantling Roe v. Wade. When Bush vetted possible candidates, Toobin notes, conservative activist groups were consulted, and at one point 60 “pro-family groups” were called so that Rove could make a case to them for the then-prospective nominee, Harriet Miers.

The progressive moment, on the other hand, doesn’t seem to have a clear ideological litmus test for the court, or top priorities in making appointments. Should a Democratic president favor an appointee with a strong background on choice, but who opposes limits on campaign finance? And what if a candidate has a strong progressive background but is a white man, given how important lived experience to judging? Further, might the progressive movement want to make a strategic decision to de-prioritize the court to focus money and organizational muscle elsewhere? Should there be a more concerted effort to create a pipeline for progressive legal talent? How will the court shape the constraints on other branches of government?

Progressive legal scholars should begin debating these ideas and laying out legal justifications for them. Elite liberal thought leaders should begin to think about the possibility of a progressive court. Presidential candidates vying for progressive votes should say where they stand; not just on overturning bad conservative decisions, but on blazing the path to the future. And activists should begin considering what their demands might be, while think tanks begin to support them with legal research and advocacy. Possible Supreme Court appointees should be vetted based on their positions on these important questions.

On the right, organizations like the Federalist Society have dramatically re-envisioned the possibilities of the Supreme Court. Recently, conservatives have begun organizing a movement to wipe out decades of precedent and bring back the Lochner era, in which the court would strike down minimum wages and labor regulations. The right, in short, has done what progressives have not: invested serious intellectual and organizing energy into creating a more conservative court. To combat this, we need a progressive agenda for the court. Progressives may well soon take the reins. But we don’t know where the hell we’re going.

This piece originally appeared on Salon. 

How the Supreme Court is about to explode America’s racial wealth gap

When discussing race, the conservative argument is best expressed by the famous words of Chief Justice John Roberts: “The best way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Translation: America has done bad things in its history, but those bad things are gone now, so we should move past those horrors and look forward.

Conservatives believe that if blacks and Latinos simply work hard, get a good education and earn a good income, historical racial wealth gaps will disappear. The problem is that this sentiment ignores the ways that race continues to affect Americans today. A new report from Demos and Brandeis University, “The Racial Wealth Gap: Why Policy Matters,” makes this point strongly. The report shows that focusing on education alone will do little to reduce racial wealth gaps for households at the median, and that the Supreme Court, through upcoming decisions, could soon make the wealth gap explode.


Wealth is the whole of an individual’s accumulated assets, not the amount of money they make each year. As such, in his recent book, “The Son Also Rises,” Gregory Clark finds that the residual benefits of wealth remain for 10 to 15 generations. To understand why that matters, consider the fact that Loretta Lynch, Obama’s recent nomination for U.S. attorney general, is the great-great-granddaughter of a slave who escaped to freedom. (That’s four generations). Consider also that most people on Social Security today went to segregated schools. (That’s two generations.) If Clark is correct in his thesis, then the impacts of wealth built on the foundations of American slavery and segregation will continue to affect Lynch’s great-great-great grandchildren.

It is therefore unsurprising that addressing just one aspect of this disparity cannot solve racial wealth gaps. Demos/Brandeis find that equalizing graduation rates would reduce the wealth gap between blacks and whites by 1 percent, and between Latinos and whites by 3 percent at the median. Equalizing the distribution of income would only reduce the wealth gap by 11 percent for blacks and 9 percent for Latinos. Part of the durability of wealth gaps is the disproportionate benefits that whites still enjoy: They face less job market discrimination and are more likely to reap a big inheritance, for example. This means that the returns to education and income are generally higher for whites. But even after controlling for these returns, income and education can’t explain the entire wealth gap.

Because America’s primary vehicle for wealth accumulation is our homes, much of the explanation of the racial wealth gap lies in unequal homeownership rates. According to the Brandeis/Demos analysis, equalizing homeownership would reduce the racial wealth gap by 31 percent for blacks and 28 percent for Latinos. This effect is muted because centuries of discrimination—including racial exclusion from neighborhoods where home values appreciate, redlining, and discriminatory lending practices—mean that people of color are segregated into relatively poor neighborhoods. Indeed, in 1969, civil rights activist John Lewis bought a three-bedroom house for $35,000 in Venetian Hills, Atlanta. He and his wife were the first black family in the middle-class neighborhood. In his book, “Walking with the Wind,” he notes that, “within two years… the white owners began moving out.” Had the value of his house simply kept up with inflation, it would be worth $222,881 today. But Zillow shows that three-bedroom houses in Venetian Hills, Atlanta, are currently selling for around $65,000 to $100,000.


Systematic disinvestment in communities of color means that even when blacks and Latinos own their homes, they are worth far less than white homes. In addition, blacks and Latinos are targets of shady lending. They are more likely to be offered a subprime loan even if they are qualified to receive a better rate. In the wake of the financial crisis, big banks like Blackstone scooped up foreclosed homes and are now offering them to people of color to rent, further pulling wealth out of these communities to benefit rich whites.

The financial crisis had a disparate impact on people of color. A Center for Responsible Lending report examined the loans originated during the subprime boom (2005 to 2008), and found that blacks and Latinos were almost twice as likely to have foreclosed during the crisis. The New York Times reported that Wells Fargo “saw the black community as fertile ground for subprime mortgages, as working-class blacks were hungry to be a part of the nation’s home-owning mania.” They discovered that loan officers “pushed customers who could have qualified for prime loans into subprime mortgages” and “stated in an affidavit… that employees had referred to blacks as ‘mud people’ and to subprime lending as ‘ghetto loans.’”

These problems are troubling, but, as unlikely as it seems, things are about to get even worse. The Supreme Court is set to decide Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, a landmark case challenging the disparate impact test, which allows a practice to be considered discriminatory if it disproportionately and negatively impacts communities of color, even if a discriminatory intent can’t be proven.

The case involves an excellent example of why disparate impact is so important: Nearly all of the tax credits that the Texas Department of Housing and Community Affairs had approved were in predominantly non-white neighborhoods. At the same time, the department disproportionately denied the claims in white neighborhoods. A federal judgedecided that regardless of racial intent, the result had a “disparate impact” and increased neighborhood segregation. As Nikole Hannah-Jones has extensively documented, disparate impact has been crucial in holding banks accountable. For instance, the Justice Department used it to settle with Bank of America for $335 million after it was discovered that a mortgage company purchased by BofA had been pushing blacks and Latinos into subprime loans when a similar white borrower would have qualified for a prime loan.Because there was no official policy that required blacks and Latinos to get worse loans, the case would not have been won but for the disparate-impact statute.

The Supreme Court has already decimated the Voting Rights Act, opening the door for onerous restrictions on voting. They upheld a law banning affirmative action at state universities and have already crushed integration efforts at K-12 schools. Worryingly, as Demos Senior Fellow Ian Haney López told ProPublica, “It is unusual for the Court to agree to hear a case when the law is clearly settled. It’s even more unusual to agree to hear the issue three years in a row.” Given the importance of neighborhood poverty to upward mobility and wealth building, this case had the potential to be the most destructive, dramatically curtailing opportunity and making the wealth gap into a chasm. As Patrick Sharkey notes, “Neighborhood poverty alone accounts for a greater portion of the black-white downward mobility gap than the effects of parental education, occupation, labor force participation, and a range of other family characteristics combined.”

Demos and Brandeis suggest policies to boost homeownership, like better enforcement of anti-discrimination laws, lowering the cap on the mortgage interest deduction so blacks and Latinos can benefit and authorizing Fannie Mae and Freddie Mac to allow homeowners to modify their loans. In addition, America needs to systematically invest in poor neighborhoods. Equalizing public school education funds for poor and nonwhite schools would increase home prices in poor neighborhoods. In addition, a baby bond program would directly reduce wealth gaps by giving children money that could be used for a down payment on a house or an investment in their education. What’s clear is that we cannot simply hope that wealth gaps will disappear. These gaps were created by racially biased federal policies and need to be remedied by public policy as well. Government created the white middle class in the 1950s; now it’s time to create a black and Latino middle class. The Supreme Court, with its supposedly race-neutral philosophy, will only make it more difficult to close racial wealth gaps.

Catherine Ruetschlin is a Senior Policy Analyst at Demos and co-author of the report “The Racial Wealth Gap: Why Policy Matters.

Why Can’t We Stop Gun Violence?

Since the Sandy Hook tragedy of 2012, there have been 17,042 gun deaths and . The Onion captured the frustration many Americans have about the gun violence problem: “ ‘No Way To Prevent This,’ Says Only Nation Where This Regularly Happens.” It’s certainly true that gun violence is unique to America, the chart below created with data from a recent paper by Sripal Bangalore and Franz H. Messerli, who find that higher levels of gun ownership correlate with more gun deaths (the study finds no correlation with the level of mental illness).



The data show that the U.S. is the clear outlier with regard to gun violence (with 10.2 gun deaths per 100,000) while Japan, which has almost no firearm ownership, has almost no deaths as well (.06 deaths per 100,000 people). Japan’s success is due to having possibly the most strict gun-control regime of any country. In an article on Japan’s gun control regime, David Kopel notes that, “The only type of firearm which a Japanese citizen may even contemplate acquiring is a shotgun.” But even shotguns require an extensive licensing procedure which involves a written test as well as a test of mental health. Applicants and their relatives must undergo a background check and all guns must be kept in a locker. Handguns are banned. In many parts of America, a prospective gun owner can simply go to a gun show and obtain a gun, no questions asked.

Unlike in the U.S., mass shootings frequently spur policy changes in other countries. Australia, for example, passed strong gun control laws after a deadly massacre in 1996 and now has  a far lower gun violence rate than the U.S. (1.04 deaths per 100,000). However, a Japanese or Australian-style gun control regime is impossible in the United States. The Supreme Court struck down a ban on semi-automatic weapons and handguns in District of Columbia v. Heller, meaning that the only weapons that could be subject to a Japan-style ban are assault rifles. This decision was extended to the states in McDonald v. Chicago. Sadly then, the U.S. will ever get to down to a level of gun ownership as Japan or Australia.

But simply because the U.S. won’t get down to the gun ownership levels of Japan doesn’t mean we should do nothing. Within the U.S., states have dramatically divergent gun ownership rates. The Daily Beast finds that Kentucky had 58,196 background checks per 100,000 residents in 2012, while New Jersey had only 938. Hawaii, New York and Rhode Island had 1,208, 1,652 and 2,106 respectively. A 2013 study in The American Journal of Public Health performed an analysis similar to the Bangalore/Messerli study and finds the same results across the United States. Some states have very high levels of gun ownership (and therefore gun deaths) while others have low rates of gun ownership. Studies find that states with stricter gun control laws also have lower levels of gun violence. Other studies show that fewer guns lead to fewer gun suicides. Commonsense regulations like expanding background checks and removing the gun-show loophole have empirical backing as well as the support of most Americans. The question, then, is not “how” to prevent gun deaths, but rather, why we’re not, and the answer is clear: the National Rifle Association (NRA).

The NRA is high on its own political success. As David Frum notes, “No crime or atrocity, not even the massacre of children at Sandy Hook Elementary School, has checked the strong trend of U.S. public policy to make ever more lethal weapons ever more easily available to ever more people, including people with histories of domestic violence.” Frum understates the NRA’s extremism. The organization has  has even gone as far as fighting smart guns, which use new technologies to ensure that children can not unintentionally fire the gun (one requires the user to wear an accompanying wristwatch to fire it). Given that one study finds that smart guns reduce gun deaths significantly, such technologies are a no-brainer. The NRA also opposes laws requiring gun owners to safely store weapons, which have a track record of success.

The problem is that the NRA gains these political successes by lobbying against the interests of most Americans. Political scientist Martin Gilens writes in Affluence and Influence, “By far the strongest association between interest group alignments and policy outcomes concerns gun control.” He compares the stated policy preferences of Americans to those of interest groups, unions and corporations. He finds that interest groups tend to align with Americans on economic and social welfare policy, but strongly diverge on gun policy and environmental policy (on the chart below, a positive number indicates that the organization is pursuing policies that are aligned with Americans’ preferences, while a negative number indicates that they are lobbying against Americans’ preferences).



Gilens finds, disturbingly, that interest groups are incredibly successful on the issue of gun control, but also that interest groups pursue policies that are radically divergent from public preferences. Gilens breaks down the data so we can see individual organizations.



The chart shows that while some organizations, like the AARP lobby for policies with broad support among Americans, the National Rifle Association (NRA) does not (and this holds across the income spectrum). How does the NRA exert such a powerful influence on Washington? Certainly part of the answer is money. Data from the Center for Responsive Politics show that organizations in favor of gun control are vastly outspent by those opposed to it.


Americans will always likely have more guns than other developed countries. The Supreme Court has decided strongly in favor of the NRA’s interpretation of the Second Amendment (in District of Columbia vs. Heller). But most Americans, including myself, aren’t trying to “take away your guns.” We’re trying to keep guns out of the hands of killers and children. Sadly, the NRA has the power to stop these common sense regulations. The Supreme Court has overstepped its bounds, but there is still room to act. We know what works. The people want it. The question is whether politicians have the gumption to tackle organized interests.

Something resembling this piece was published on Policymic.