The Most Conservative Branch

Reading the Constitution, the latest book by the recently retired Supreme Court justice Stephen Breyer, bears the subtitle “Why I Chose Pragmatism, Not Textualism.”^* But an alternative subtitle might have been “Why I Got Beat by Nino.” Much of the book is devoted to a defense of Breyer’s dissenting opinions in Supreme Court cases over the past several decades in which the majority opinions were written by Justice Antonin “Nino” Scalia or his acolytes.

Breyer’s essential point is that whenever the meaning and scope of a statute are in dispute—which is true of most cases heard by the Supreme Court—a reasonable jurist will not only consider the words of the statute, which are frequently ambiguous, but also look to whatever other information is available, such as the legislative history of the statute, the purpose it was designed to serve, and the practical implications of the alternative interpretations being offered. This is hardly a novel point of view. The same point was convincingly made by, among others, Robert A. Katzmann, the former chief judge of the Second Circuit Court of Appeals, in his book Judging Statutes (2014):

How Congress makes its purposes known—through text and reliable accompanying materials—should be respected…. And practical ways should be pursued to further the objective of promoting statutory understanding. [emphasis added]

This seems like such obvious common sense that it must strike outside observers as strange that this holistic approach has so frequently been rejected by the Court’s majority, with their insistence, born of the theories propounded by Scalia and his followers, that only the text of the statute matters.

Further still, when it comes to the Constitution, the provisions of which are often expressed as general principles (“due process,” the power “to regulate Commerce…among the several States,” the power “to make all Laws which shall be necessary and proper” to carry out congressional powers, etc.), the Scalians insist not only that the focus be narrowly limited to the document’s words (so-called textualism) but also that the words be interpreted solely as they were understood at the time of its enactment (so-called originalism). Breyer, who is the essence of reason and balance, finds it difficult to understand why this willful blindness to any other helpful information would appeal to anyone but storks.

Partly this is because he is simply unwilling to admit that his onetime colleagues and friends on the Supreme Court could be anything less than sincere (albeit misguided) in their theories of statutory and constitutional construction or that their real purposes are political and ideological. Indeed, he goes so far as to suggest that the Supreme Court justices of the early twentieth century who constantly overruled progressive legislation did so as an expression of sincerely held beliefs that any curtailment of rampant capitalism was an infringement of constitutionally protected freedoms and that “courts were better suited to protect those rights than legislatures.”

But I would suggest a more realistic view: for much of its history the Supreme Court has been the most conservative branch of the US government, and its justices have been chiefly motivated by their personal ideologies, which, like all good lawyers, they camouflage as solid reasoning.

In the first decades of the nineteenth century the Court, then in its infancy, was mainly concerned with fostering the growth of commerce over agrarian interests, as well as upholding the subordination of Native Americans and the enslavement of African Americans. In Cherokee Nation v. Georgia (1831), Chief Justice John Marshall held for the Court that the Cherokee, who were being forced off the lands guaranteed to them by a treaty with the US because speculators in Georgia had discovered gold on those lands, had no standing to complain because they were mere wards of the state: “They look to our Government for protection; rely upon its kindness and its power, appeal to it for relief to their wants, and address the President as their Great Father.” In the infamous case of Dred Scott v. Sandford (1857), the Court held that a person of “Negro” ancestry could never be a citizen of the United States. Specifically, it found that at the time the Constitution was adopted, the word “citizen” did not include Black people, because they were universally regarded as inferior and at best a kind of property, and however much this view might have changed in subsequent decades, the Court was still bound by the meaning of “citizen” at that time. Dred Scott is actually an early example of originalism at work. What followed was the Civil War.

Dred Scott was effectively overruled by the first sentence of the Fourteenth Amendment, enacted in 1868, which provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Yet as far as the Supreme Court was concerned, remarkably little changed after the Civil War, even though the second sentence of the Fourteenth Amendment declares:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In the ironically named “Civil Rights Cases” (1883), the Court held that the postwar Civil Rights Act of 1875 providing for equal access of all persons to accommodations, public conveyances, and the like were unconstitutional because Congress had no power, even under the Fourteenth Amendment, to legislate the conduct of private commercial parties like innkeepers or stagecoach companies.

But what if state action was clearly involved, as in a case about a Louisiana law requiring that the races be separated while riding on trains? In 1896 the Court, in Plessy v. Ferguson, upheld the “separate but equal” fiction that was at the heart of Jim Crow laws throughout the South. Rejecting all constitutional claims, the Court, by an overwhelming majority (7–1, with one judge abstaining), decreed that

the enforced separation of the races…neither abridges the privilege or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws.

So much for the Fourteenth Amendment—or, for that matter, Reconstruction in general.

As for that other group of subordinated citizens, women, the Court held unanimously in Minor v. Happersett (1874) that the Fourteenth Amendment, in conferring both state and federal citizenship on all persons born in the United States, did not thereby confer on women the right to vote. And this, said the Court, was made clear by the fact that when the Constitution was adopted, women did not have the right to vote and therefore the original reference in it to the rights of “citizens” did not imply suffrage, and there was nothing in the Fourteenth Amendment to indicate that it was using the term “citizen” in any broader fashion. So, once again, originalism triumphed, long before Scalia.

By the early twentieth century, as Breyer notes, the Court had become a bastion of what he calls the “laissez-faire zeitgeist.” (It is so like Breyer to describe the American mood of the time with a combination of French and German words.) The same justices who believed that the Fourteenth Amendment’s protection of the privileges of citizens did not extend to the right of female citizens to vote felt strongly that among the privileges it did protect was a citizen’s “freedom of contract,” which no state could abridge. So the Court went on a spree of invalidating state laws designed to protect workers against the excesses of rampant capitalism. In Lochner v. New York (1905), it overturned a New York law prohibiting bakery employees from working more than sixty hours a week, on the grounds that

the statute necessarily interferes with the right of contract between the employer and employees…[which is] part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.

Similarly, in Adkins v. Children’s Hospital (1923), the Court struck down a District of Columbia law setting minimum wages for women and children, on the grounds that it violated the right of “freedom of contract” that the Court now found was inherent not only in the Fourteenth Amendment but also in the “due process” clause of the Fifth Amendment. The D.C. law was therefore, said the Court, “an arbitrary interference with the liberty of contract which no government can legally justify in a free land.”

It further followed from this exalted right of freedom of contract that labor unions were a menace. As early as 1908 the Court, in an opinion by Chief Justice Melville Fuller, held unanimously in Loewe v. Lawlor that a union’s secondary boycott of a nonunion hat company in Connecticut violated the Sherman Antitrust Act. That same year, in Adair v. United States, the Court struck down a federal law that prohibited railroad companies from requiring prospective employees, as a condition of being hired, to sign contracts that forbade their joining a union.

Never one to presume bad faith, Breyer notes that while “historians and legal academics have long criticized the Lochner Court’s reasoning and the subsequent refinement of its laissez-faire principles in cases like Adkins,” the justices “may have viewed themselves as maintaining a system that they believed was working well for the most part for most Americans.” But was that their decision to make, or that of the democratically elected legislatures? I think a more objective view is to recognize that the justices sought to impose their conservative views on the will of the majority by concocting legal theories to fit the moment.

In any event, the Court continued to invalidate progressive legislation well into the New Deal era and only altered its jurisprudence after Franklin Roosevelt attempted to “pack” the Court with additional members. Though he did not succeed, Roosevelt, by virtue of the longevity of his presidency, was ultimately able to nominate a majority of its members. Yet although the Court became more favorable to New Deal legislation, it remained surprisingly conservative when it came to human rights and still proved capable of such illiberal howlers as the effective approval of the internment of Japanese American citizens in Korematsu v. United States (1944).

But what about the Warren Court of the 1950s and 1960s, which was anything but illiberal? Breyer suggests that the Warren Court represented a “paradigm shift” reflecting a change in public opinion as a result of World War II. Maybe. But we would also do well to remember that the liberalism of the Warren Court was something of a fluke. When he appointed Earl Warren and then William Brennan to the Court, President Eisenhower believed they were moderate conservatives who would restore it to a more conservative jurisprudence. Warren, the former governor of California, had supported the internment of Japanese Americans, and Brennan, though a Democrat, was a Roman Catholic who, Eisenhower believed, not only held traditional social views but had also demonstrated conservative views on criminal law issues. That Warren and Brennan would become not just judicially liberal but also hugely influential in changing the direction of the Court, especially in matters of criminal law, was as unforeseeable as that President Kennedy’s subsequent appointment of the seemingly liberal justice Byron White would add another conservative voice. While not discounting the effect of the Great Depression, the New Deal, and World War II in altering the climate of public opinion, we should not ignore the fact that sheer chance helped create the Warren Court.

Beginning with the subsequent Burger Court and continuing into the Roberts Court, many of the Warren Court’s progressive rulings in criminal law and procedure were steadily whittled down, even if not formally overruled. This was most obvious in the great narrowing of the circumstances in which state violations of a suspect’s Fourth and Fifth Amendment rights would be penalized by suppression of the evidence obtained through such violations (the “exclusionary rule”). But the silent undercutting of Warren Court precedents extended to many other instances of police misconduct as well. For example, as early as 1983, in City of Los Angeles v. Lyons, the Court, in a decision written by Justice White, held that Adolph Lyons lacked standing to federally challenge Los Angeles’s general policy and practice of authorizing its police officers to apply life-threatening choke holds to suspects who posed no threat of violence. The Court said that Lyons, who had almost been choked to death by the police, had no standing because he had not shown a sufficient likelihood that he would be similarly choked again in the future. On this rationale, no victim of that putatively unconstitutional practice could ever challenge its constitutionality. It is hardly surprising that following this decision numerous people died from being choked by police, the best-known example being George Floyd in 2020.

More generally, even before the Trump presidency, the Court had returned to its “traditional” conservative stance on a broad spectrum of issues, as illustrated, for example, by Citizens United v. Federal Election Commission (2010), in which it overruled a pair of prior precedents and held that corporations were among those “people” entitled to full First Amendment protections against laws barring corporate expenditures for electioneering communications. Even more striking was District of Columbia v. Heller (2008), in which the Court, in a decision written by Justice Scalia, purported to use originalism to greatly narrow the scope of gun control legislation. Previously the Second Amendment—which reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”—had been interpreted simply as guaranteeing the right of members of state militias to keep and bear arms in relation to the work of such militias. But Justice Scalia’s opinion, while claiming to be textualist in its approach, essentially disregarded the first thirteen words of the amendment as no more than one of the reasons for allowing people to keep and bear arms, even if they had no relationship to any state militia. Perhaps the hypocrisy of this version of textualism and originalism might be more forgivable if it did not, in effect, help mass murderers secure the means to their ends.

It is obvious that with the addition of the Trump appointees, the Supreme Court has become downright reactionary, as most notoriously demonstrated in its overruling of Roe v. Wade (1973). While Breyer is highly critical of such decisions as Dobbs v. Jackson Women’s Health Organization (the 2022 case that overruled Roe), the main thrust of his book is to try to demonstrate that they are the products of imperfect and rigid modes of constitutional interpretation as opposed to the broader and more “pragmatic” approaches he recommends. Yet it is hard to believe that a person as sophisticated as Breyer does not realize that modes of constitutional interpretation are in a great many cases simply window dressing for judicial decisions that are really the products of ideology. One may therefore hypothesize that his real motivation is simply to move the Court to a more moderate ideological position by using his prestige to attack some of the shortcomings of the textualist approach without attacking the good faith of its proponents.

In any event, the instances in which both conservative and liberal Supreme Court justices are willing to diverge from their preferred methods of statutory interpretation to reach results more consistent with their ideological leanings are so numerous as to cast in doubt their claims of adherence to such methods. A stark example, decided just before the end of the most recent Supreme Court term, was the case of Snyder v. United States. It involved the federal conviction of James Snyder, the former mayor of Portage, Indiana, for accepting a personal payment of $13,000 from a trucking company, Great Lakes Peterbilt, a year after he arranged for it to be awarded two contracts valued at about $1.1 million.

The statute in question, 18 U.S.C. §666, makes it a federal crime for any state or local official to corruptly solicit, accept, or agree to accept anything of value from any person “intending to be influenced or rewarded” for an official act. The issue was whether this only covered bribes, in which the payment is promised before the official act is done, or also covered so-called gratuities, in which there is no proof of any agreement before the official act is done but the payment nonetheless is a “reward” to the official for having done it. The six conservative justices, consistent with the narrow reading they have repeatedly given to federal statutes directed at state and local corruption, held that section 666 only applied to bribes and therefore reversed Snyder’s conviction, since there was no proof of any corrupt agreement between him and Peterbilt before the contracts were awarded.

But what is noteworthy about the case, from the standpoint of statutory interpretation, is that the majority opinion written by Justice Brett Kavanaugh, rather than relying on textualism, held that

six reasons, taken together, lead us to conclude that §666 is a bribery statute and not a gratuities statute—text, statutory history, statutory structure, statutory punishments, federalism, and fair notice.

In other words, the majority, composed of supposedly textualist conservatives, ostensibly took the very approach that Breyer’s book recommends.

By contrast, the three liberal dissenters, in an opinion written by Justice Ketanji Brown Jackson, took a purely textualist approach. In words reminiscent of the style of the late Justice Scalia, the dissent states that

Snyder’s absurd and atextual reading of the statute is one only today’s Court could love. Ignoring the plain text of §666—which, again, expressly targets officials who “corruptly” solicit, accept, or agree to accept payments “intending to be influenced or rewarded”—the Court concludes that the statute does not criminalize gratuities at all.

Reading all this, a cynic might suggest that the justices of the Supreme Court are unanimous in viewing principles of statutory interpretation as matters of convenience.

Just as law students are trained to speak out of both sides of their mouths, judges can always find a seemingly plausible rationale for deciding as they do. In the lower courts, this is tempered by the knowledge that their decisions, and the reasons they give for them, are subject to review. But Supreme Court decisions are not subject to further review, which means that the only constraints are the need to attract five votes and the principle of adhering to past precedent. The latter constraint is less weighty than the first (as Dobbs showed), but it is one reason why the Supreme Court is more conservative than other branches of the government: the first thing any justice must do before deciding a case is examine past precedents that, even if many years old and decided in different circumstances, are still the law of the land.

However, the main reason the Supreme Court has been for most of its history, as now, the most conservative of the three branches is that conservatives have traditionally paid much more attention than liberals to placing their allies on the Court, because it is their best hope for preserving the values they seek to preserve against popular reforms.

This view of the Court as a bastion against innovation was recognized early on. After Thomas Jefferson’s progressive Republican Party won the federal election of 1800 but before the new administration took office, the more conservative Federalists sought to pack the federal courts with as many of their members as they could get through Congress. Jefferson wrote to his friend John Dickinson that the Federalists

have retired into the judiciary as a stronghold. There the remains of Federalism are to be preserved and fed from the treasury, and from that battery all the works of Republicanism are to be beaten down and erased.

Similarly, before and after the Civil War, conservatives (then mostly Democrats) focused on getting as many southerners and southern-sympathizers on the Court as possible, while in the early twentieth century the then-conservative Republican Party focused on getting business-friendly candidates appointed to the Court. Even the Warren Court would have followed this pattern if Eisenhower had not misjudged Warren’s and Brennan’s inclinations. And the more recent success of the Federalist Society in getting reliable conservatives appointed to the Court is well known.

Of course, liberals are not oblivious to the importance of the Court, but perhaps because of their desire for change, they have tended to focus on electing legislators and presidents who can bring about change much more quickly than the Supreme Court generally can. And this focus has meant that their nominees to the Court have tended to be middle-of-the-roaders (Justices Jackson and Elena Kagan being a good recent example). But the result is that, for better or worse, the Supreme Court is the most conservative of our three branches of government, and it is likely to remain so.