The press and the rest of the commentariat have fallen into the habit of referring to the work of Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch as “conservative.” That is wrong. In several of the most controverted areas that the Court has entered and in which its decisions have had a profound effect on law and on our national life—voting rights, gerrymandering, affirmative action, abortion, campaign finance, and most recently mandatory agency fees to public sector unions—the Court has undermined or overturned precedents that embodied longstanding and difficult compromise settlements of sharply opposed interests and principles. These decisions are not the work of a conservative Court.
The decision at the end of the 2017 Term in Janus v. AFSCME, Council 31, overruling Abood v. Detroit Board of Education is a signal example of what conservative judging is not. (Robert Post and I submitted an amicus brief supporting the respondent union in this case.) In the Abood case, the Supreme Court in 1977 considered the objection of public school teachers to being required to pay a representational fee to a union which they had declined to join but which was the designated collective bargaining representative of the unit in which they were employed. On one hand, the Court acknowledged the force of the objection, said to be based in the First Amendment right not to be associated with speech with which they disagreed; and on the other hand, the claim of the state to conduct its labor relations through and with a majority union as its designated agent and to require all those who enjoyed—if that is the right word—the benefits of that representation to contribute to its cost. The Court for some time had considered a similar conflict in respect to private sector unions, as well as in compelled dues to bar associations. The powerful analogy—but no more than an analogy—to the strong odium Madison and Jefferson attached to compelled support of teachers of religion was weighed against the equally imperfect analogy to citizens’ compelled contribution by way of taxes to a variety of activities of government, including teaching and even what might seem propaganda, with which some citizens might disagree. These latter were disputes resolved by democratic processes in which there are winners and losers, and never did they require the dissenters to endorse through their own speech messages they might abhor.
The settlement, and imperfect it was, the Court arrived at was that the dissenters must pay, but only for such activities that the government itself had put in the hands of the union to assist it in the management of its employment relation: e.g., bargaining about wages, hours, working conditions, and the settlement of disputes. These lines were often hard to draw and they required constant policing and adjustment, but for some forty years they structured tolerably well what sometimes was a fraught web of relations. And where employees and citizens found that resolution intolerable they had in hand the normal mechanisms of democratic politics: states or municipalities could bar such arrangements through right-to-work laws and similar legislation.
The 2013 decision in Shelby County v. Holder represents a similar undoing of a compromise of even longer standing by which Congress in 1965 put certain jurisdictions, with a particularly deep and deplorable history of voter suppression rooted often in our nation’s racist past, into a kind of receivership in respect to changes in their electoral systems. This too was an uneasy compromise between the principle that all units of our government are entitled to an equal measure of respect and the reality that some governments in some parts of our country were still not quite to be trusted to behave properly towards their citizens in this one regard. This was the judgment of Congress in 1965 and in periodic reviews and adjustments by Congress—one as recent as just seven years prior to the decision. Yet here too the Court firmly seized one horn of the dilemma and ruled unconstitutional this compromise that had prevented the disenfranchisement of many hundreds of thousands of minority citizens during the previous almost half century. Subsequent developments cannot be said to have vindicated the Court’s intervention.
Affirmative action in elementary and higher education is a similar instance of a series of awkward and far from candid compromises, first launched in 1978 in Justice Powell’s lone opinion in Regents of the University of California v. Bakke. I will not rehearse the several values—often designated or even disguised by unhelpful terms such as color-blindness, equality of opportunity, diversity, inclusion and the like—but it is hard to gainsay that without the regime launched some forty years ago our elite institutions would for far longer have borne the aspect (and to some degree might still bear it today) of our segregated past. Yet in Parents Involved in Community Schools v. Seattle School District in 2007, Chief Justice Roberts allowed himself to pronounce that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Only Justice Kennedy’s declining to join in that opinion kept this apothegm from becoming the law of the land.
Yet another example is the suite of campaign finance decisions undoing settlements, some of which reach back as far as 1907. For it is from that distant date until the 2010 decision in Citizens United v. Federal Election Commission that corporations have been prohibited from intervening in federal elections. In the less distant past, from the 1976 decision in Buckley v. Valeo through the 2003 decision in McConnell v. Federal Election Commission, we have had a fairly stable if (once again) somewhat incoherent compromise by which individuals are sharply constrained in how much money they may give to federal political campaigns while being left entirely free, in the name of First Amendment, to spend without limit in promulgating their own views on political matters and candidates—so long as such expenditures are independent of the candidates, not coordinated with them. This was an evident compromise between the democratic principle that wealthy individuals should not be able to buy elections (or candidates) and the principle that speech may not be silenced and, therefore (if this indeed follows), neither may the sums necessary to promulgate that speech.
The Court has begun to dismantle that compromise as well, for in 2014, in McCutcheon v. Federal Election Commission, the Court held that so long as the contribution limits to any single candidate are observed wealthy individuals may donate however much they like to any number of candidates for federal office. By legislation dating from the 1970s and unquestioned until McCutcheon, contributors were limited to something like $25,000 in the aggregate.
The 1970s also brought in modest schemes of public financing of elections. Buckley clearly rejected challenges to these schemes as somehow disruptive of democracy and unconstitutionally weighing in on one side of political contests. And such state and federal public finance regimes have been respected ever since. Yet in 2011, in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, the Court ruled that allowing a state to add resources to a publicly financed candidate to meet well financed private opposition somehow violated the private contributors’ First Amendment rights.
Each of these instances—and there are others that could be added from the fields of criminal procedure, administrative law, abortion regulation, and what are called privacy rights—represent uneasy and perhaps not entirely coherent settlements occasioned by the rapid accumulation of novel constitutional doctrines instituted during the ascendency of the Warren and Brennan Courts, followed by corrections and modifications occasioned by the appointments of Chief Justice Burger and Justices Powell, Rehnquist, and O’Connor. These are the settlements within whose broad limits a fairly regular alteration between parties, fiscal regimes, and political enthusiasms have taken place. Conservatism of the Burkean variety tends to conserve settlements that seem to work, that deliver acceptable levels of prosperity and civil peace, and within which social, economic, and political experimentation may safely take place. During the period of these settlements the society has survived remarkably well through some serious upheavals: the Vietnam and Afghan-Iraq wars and the near collapse of the economy in the 2008 financial crisis.
Stability, continuity, and pragmatism are the watchwords of conservatism. The conservative asks why wholesale, radical recasting is in order. Have labor unions grown so strong that they threaten—as they did in Britain in the late seventies—to dominate the economy so that constitutional brakes rather than legislative adjustments are called for? The suggestion is laughable. Have previously disenfranchised groups grown so overweaning and the forces of bigotry so far dispersed that the protections of civil rights laws are no longer needed? The Congress as recently as 2006 did not think so. Has the influence in political campaigns of large amounts of money from a few wealthy individuals and organizations so decreased from 1907 or the 1970s that it is time not only to dismantle but to declare beyond the constitutional pale any meaningful regulation of money in politics? Conservatism surely recognizes the need to respond to changed circumstances. But the radical reversal, in the name of vague and manipulable abstractions, of settlements that work tolerably well is not that.
Perhaps, to take another example, the individual mandate in the Affordable Care Act was bad policy and part of an unworkable, Rube Goldberg-like scheme to patch up the nation’s far too costly and uneven health care system. But to guide his rejection of the mandate, the Chief Justice invoked the Constitution and the trope of originalism: “[This] is not the country the Framers of our Constitution envisioned.” Really? Hamilton, for one, might have been just fine with it. (See Gordon S. Wood, Revolutionary Characters 133-137 (2006)). And as for Madison, it depends on whether you are invoking the Madison of the Philadelphia Convention—the founding—or the later Madison of the Jeffersonian Democratic Republicans. At any rate the Chief’s invocation is unsupported sloganeering. It is not conservatism.