- Unleashing unlimited corporate spending on our political system.
- Overturning one of the signature legislative accomplishments of the civil rights movement, which had established and protected the right to vote for tens of millions of Americans.
- Telling 1.6 million women who worked for Wal-Mart that they do not have enough in common as a “class” to bring a discrimination claim challenging Wal-Mart’s failure to promote or appropriately compensate them.
- Weakening home care worker and child-care worker labor unions across the country.
- Allowing states to establish new photo-ID requirements that disenfranchise millions of voters.
- Taking affordable public health insurance coverage away from tens of millions of low-income Americans, for the simple reason that they live in Republican-controlled states.
- And most important: ending the Florida recount, to install George W. Bush as president of the United States – and all that followed.
This is just a sampling of what the narrow Supreme Court majorities that Justice Antonin Scalia was part of accomplished, over the last two decades, under Chief Justices William Rehnquist and John Roberts. That period of right-wing ascendancy on the court has likely come to a sudden end, at least until we next elect a Republican president.
An awesome achievement
I am not a lawyer, so there’s a lot of nuance I’m sure I miss in the rulings. I see their practical and political effects, more than the argumentation and legal theory behind them. There are probably several other cases more important than ones I’ve included in the brief list above. But set those limitations aside for a moment, if you will, and step back with me to reflect on the awesomeness of what Scalia and his allies achieved.
It’s probably clear to you already that I am no fan of the rulings listed above. In fact, in the vast majority of cases where the Supreme Court did not rule unanimously or near-unanimously, over the last 20 years, I – as a progressive political activist and union leader – disagree with Scalia’s position. But as we all try to assess the new legal and political landscape that his sudden and unexpected death has brought to our country, I think we would benefit from taking some time – no matter what our political lens or moral compass – to appreciate the incredible success Justice Scalia and his right-wing colleagues have had in their efforts to change the country through a combination of novel, offensive legal strategies and a relentless focus on the politics of judicial appointments.
There’s plenty of other good material online and in print that you can read right now about what happens next for this Supreme Court; the impact of Scalia’s death on abortion rights, the strength of the labor movement, and the survival of the Paris climate-emissions accords; the battle lines Senate Republicans have drawn against any presidential appointment to fill Scalia’s seat; and the creative readings of history and precedent for Supreme Court appointments on display among Republican senators and presidential candidates. Rather than dig further into any of that rich material, I am going to focus here on the past, on simple appreciation of Scalia’s record.
With the possible exception of Obamacare (the Affordable Care Act), when was the last time a progressive cause in this country made anywhere close to as much progress at the federal level as the right won with Citizens United, or with overturning the Voting Rights Act and allowing photo-ID requirements that block citizens from voting? Go back through the entirety of the Bill Clinton and Obama administrations and try to find progressive accomplishments in the domestic arena as significant as either of those two.
From marginal to majority
Both the unleashing of corporate money on elections and the evisceration of the Voting Rights Act were won entirely through the courts, as the culmination of strategies that were initially seen – just as Scalia himself was seen, in his first years on the Court – as marginal and unlikely to win majority support. These strategies took decades of hard work to reach fruition. It is worth noting, to get a better feel for how this kind of history-making legal and political work gets done, that one of the bright young legal minds that first set the movement’s sights on the then-audacious goal of overturning the Voting Rights Act, back in the early 1980s, was John Roberts, who was working in Ronald Reagan’s Justice Department. Twenty-five years later, Chief Justice Roberts would write for the 5-4 Supreme Court majority, invalidating the central provisions of the act. Five years prior to his appointment as Chief Justice, Roberts also advised George W. Bush’s legal team in preparation for Bush v. Gore. He was called into service on Bush v. Gore by a young right-wing lawyer who shared with Roberts the distinction of having clerked for Chief Justice Rehnquist: a brash 29-year-old policy adviser to Bush named Ted Cruz.
Those of us who spend our time and energy fighting to make social change in state legislatures, in Congress, in the streets, and in our workplaces should be humbled when we compare what we’ve been able to achieve over the last generation with what judicial activism on the right has accomplished. (I keep saying “the right” or “right-wing,” by the way, because our conventional political term “conservative” is a confusing misnomer when it comes to describing the legal strategies in question here. They are in fact radical, disruptive strategies, rooted in radical legal theories.)
Of course there were a small number of Roberts-court rulings that pushed in the opposite direction: in particular, upholding the constitutionality of the Affordable Care Act and making gay marriage legal. But these only show that there were occasionally still some limits placed by the political center – against Justice Scalia’s vituperative objections – on the extraordinary ascendancy and success story of right-wing judicial activism.
The power of 5
Whenever the five Republican-appointed justices of the Roberts court stood together against their four liberal colleagues, they fundamentally reshaped the country in ways right-wing activists sought. Most of the time, they stood together. As a result, ideas that were considered marginal and suspect when Justice Scalia first articulated them, in scathing dissents, in his early years on the Court became not just viable positions but, increasingly, the enduring law of the land.
Those of us on the opposite side of the political aisle should pay respects to Justice Scalia in a spirit of deep reverence. We should study up on what he and his allies accomplished, and – especially – how they did it. Someday, maybe, folks on our side will figure out how to rival their extraordinary success.
Phillip Cryan lives in St. Paul. He is executive vice president of SEIU Healthcare Minnesota, a union of more than 35,000 health-care and home-care workers. He holds a master’s degree from the Goldman School of Public Policy at the University of California, Berkeley.
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