Jul 11, 2019

How the Supreme Court has stirred the populist pot

Protest in front of the Supreme Court, 2016

Anti-abortion protest, 2016. Drew Angerer/Getty

In an age of profound mistrust, few matters stir greater hope, satisfaction and fury among Americans than the Supreme Court and its often-decisive role as the last word across a vast number of divisive issues.

What's happening: Scholars, analysts and observers are struggling to understand the sudden populist challenge to the status quo. So it is odd that little attention has been paid to the court as a primary force in the country's often-apoplectic anger.

In a remarkable series of cases spanning more than six decades, the court and other federal judicial bodies have fundamentally altered how we speak to each other, how we vote and elect our leaders, and how we stay safe. They also may have helped to deepen political polarization.

  • In the most recent substantial case, the justices last month prohibited legal challenges to partisan gerrymandering. Critics say the decision may lead to a free-for-all in which parties in power will disenfranchise thousands of voters by drawing congressional district lines to favor themselves.
  • "It's not individual cases but this role of the Supreme Court in American life that contributes to polarization. It decides so many questions. It's become a political hotbed," said Adam Winkler, a constitutional law professor at UCLA.
  • "The Supreme Court has changed society. It's changed freedom of religion, of speech, abortion, criminal justice, property rights," said Ilya Somin, a leading libertarian law professor at George Mason University.

One marker for the court's modern, transformational age is Brown vs. Board of Education, which in 1954 upended racial segregation in schools, and over the subsequent decades roiled American society. The decision came under Chief Justice Earl Warren, who championed an activist court that sought to correct societal flaws that it said otherwise were going untended.

But the last three decades have been a court counter-revolution: Warren and his successor, Chief Justice Warren Burger, rankled conservatives, said Winkler. As president, Richard Nixon vilified court decisions expanding the rights of prisoners, and Ronald Reagan vowed to appoint only justices who would overturn Roe vs. Wade, which legalized abortion.

  • Over the last decade, the court — with an originalist tilt favoring a strict reading of the constitution — has broadened the right to own guns (2008), opened up the campaign funding spigot from corporations (2010), and invalidated part of the landmark 1965 Voting Rights Act (2013).
  • These cases and those before helped to shape the political surroundings in which the topsy-turvy half-century of politics have occurred, culminating in today's popular distrust of institutions and rejection of experts.

While the court has both fed and stoked political anger, constitutional law experts said the sources of polarization are many, and that it is difficult to pick out any one reason for the divided country.

  • "If you ask me, Fox News has had a greater effect on polarization than the Supreme Court," said Winkler, the UCLA professor.
  • Yet, it was an administrative law body — the Federal Communications Commission — that opened the way for hyper-partisan news. In 1987, the FCC overturned the Fairness Doctrine, lifting the requirement for TV news shows to be balanced, says Michael Gerhardt, a professor at the University of North Carolina.

What's next: The court is poised to drop some political bombshells in the 2020 election campaign, writes Axios' Sam Baker. At the top of its list may be abortion, guns and immigration — among the most inflammatory issues in the country.

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