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Giving credit where it’s due: Supreme Court’s right flank has had extraordinary success

REUTERS/Carlos Barria
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.
  • 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.
Phillip Cryan

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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Comments (11)

  1. Submitted by joe smith on 02/22/2016 - 09:19 am.

    SCOTUS is there to look at our constitution and give rulings on decisions from lower courts. The rulings have to be in line with how our constitution was written not on the leanings of society at any one moment in time.

    I wonder if all the rulings Mr. Cryan sees as “right wing” were overturned would he feel the bench was leaning left or liberal? Just a quick note, none of the recounts in Florida went in favor of Dems, how many re-counts would have satisfied Mr. Cryan? It is the States right to demand I.D.”s for voting not a Federal decision, same with unions, States decision. How about the millions of Americans that lost their health insurance, didnt’ save $2,500 (average cost now $4,850) and couldn’t keep their Doctor due to a SCOTUS ruling? Was that a “right wing” interpretation of the constitution? We still live in a Republic where States rights should not infringed on by Federal government power.

    • Submitted by RB Holbrook on 02/22/2016 - 04:01 pm.


      “The rulings have to be in line with how our constitution was written not on the leanings of society at any one moment in time.” I can easily name a dozen decisions–good and bad–that would have been decided differently if they had come before the Court at a different time. The Supreme Court is as much a reflection of its political, social, and cultural climate as any institution in the country.

      Incidentally, if “the leanings of society at any one moment in time” are irrelevant, the Court was quite right to ignore the usual talking points about the ACA. Additionally, you may be the last person in America (apart from alumni of the Bush administration) to defend Bush v. Gore. Even the Court was ashamed of it.

    • Submitted by Frank Phelan on 02/23/2016 - 09:37 am.

      Recounts Stopped

      SCOTUS ordered a state (so much for conservatives upholding states rights) to stop the recounts. So what you mean is that none of the recounts that had been completed favored Gore.

  2. Submitted by Dennis Tester on 02/22/2016 - 10:42 am.

    Total nonsense

    Prior to Scalia’s death, the Court consisted of three and a half constitutionalists, four potted plants, and an undecided.

    The only thing they accomplished in the past 8 years is Heller.

  3. Submitted by Connie Sullivan on 02/22/2016 - 02:48 pm.

    I don’t agree that Justices Elena Kagan, Sonia Sotomayor, and Ruth Bader-Ginsburg are “potted plants.” They don’t agree with the right-wing interpretations of law that the five-vote majority has ruled in a number of highly questionable rulings. The repeated pattern of 5-4 decisions–pretty much always the same 5 to the same 4 justices–has terrified the dominant right wingers here that a nomination of anyone to succeed Scalia is that it may tip the 4 to 5, in the other direction.

    And, for the record (look it up): All Gore won Florida’s popular vote in 2000.

    The main reason the anonymous, cowardly five-justice majority ruled to stop the vote count was that they realized, based on where the yet-uncounted votes had been cast, that Gore would win the state, and thus the presidency. So they moved fast and quietly to prevent that, and were thus part of one of the most outrageous attacks on American electoral justice in our history. Justice Scalia spent fifteen years repeating to questioners of that awful unsigned decision, “Get over it!” Talk about a stonewalling!

  4. Submitted by Rachel Kahler on 02/22/2016 - 02:57 pm.

    States’ rights are somewhat ambiguously laid out in the Constitution. However, citizens’ rights are laid out in several, fairly unambiguous, amendments. They are not rights reserved to the states if they are reserved to the individual. And since several of the rulings mentioned by Mr. Smith are actually breaches of individuals’ rights, his premise is flawed. Besides, reality skews left, so seeking balance isn’t terribly, well… balanced.

    • Submitted by RB Holbrook on 02/22/2016 - 03:57 pm.

      Technical Point

      Nowhere does the Constitution refer to the “right” of a state. States have powers. Individuals have rights.

  5. Submitted by Jon Kingstad on 02/22/2016 - 04:29 pm.

    Right wing court

    It’s hard for me to appreciate what the right wing has done by packing the court with lawyers of Scalia’s ilk who use their intelligence and power to inflict injustice in the name of some esoteric principle. None of the cases mentioned are examples of cases that could have never had any other outcome, other than one that was predetermined by the ideologue justices who wanted to hear and decide them a certain way. The dissents in each of the cases establish that fact.

    To me, Scalia revealed the true character of the right wing ideologues when he and Clarence Thomas refused to recuse themselves from deciding various cases such as the campaign finance cases. These two have attended “political retreats” organized by the likes of the Koch brothers, the same individuals who have organized the labyrinth of corporations and foundations funneling dark money into political campaigns, lobbying and litigation that ends up before the Supreme Court.

    That article mentions a previous case in 2004 when Scalia was asked to recuse himself from a case involving Dick Chemey and some of the energy interests involved in a case which later came before the Court. He refused.

    ” “If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined,” Scalia wrote.”

    Very funny. I think Scalia’s flippant attitude toward avoiding even the appearance of any bias or conflict of interest completely belies any “principles” he claimed to stand for or wrote about. Words are cheap. He set an example in those cases mentioned and in many other cases for a judiciary which now sees nothing wrong in accepting paid junkets to expensive resorts for educational purposes. I’m sure it is all very educational to learn how to decide cases the “right way.”

    • Submitted by Frank Phelan on 02/23/2016 - 09:46 am.

      Magnifying Glass

      One would need a magnifying glass to find (supposedly liberal) MSM coverage of serious allegations of Scalia’s ethically challenged behaviour. For a week we heard of nothing but his wit, charm, sharp legal mind and friendship with The Notorious RBG. Asif attending the opera with someone you politically disagree with is important.

      Lack of MSM discussion of his accepting speaking fees, etc., from persons and groups who had business before the court is even more disturbing than overlooking his childish putdowns and name calling when he didn’t get his way. This so called brilliant legal mind could act like a two year old, and some coverage of that would have balance out the fawning that was rampant. Oh yes, “Get over it” is certainly sound logic.

  6. Submitted by Greg Kapphahn on 02/22/2016 - 04:39 pm.

    One of the Great Challenges of Evaluating Scalia’s Tenure

    is the reality that some of us are healthy enough to recognize a broad view of perspectives on the myriad of issues that our nation’s citizens face,…

    and thus can evaluate how “the right flank” of American politics did with Scalia as a justice,…

    and others of us are completely unable to see a variety of perspectives,…

    incapable of ever imaging what it would be like to be someone else,…

    born into a different family under different circumstances,…

    and have been damaged enough by those who raised them as to believe that there is only one right way to be raised,…

    the way, they, themselves were,…

    and thus to assume that the reason other people have struggles in their lives,…

    is that they’re not like ME (or US).

    These damaged people look at Scalia’s legacy and believe he was carrying out “the truth,”…

    as I suspect Scalia, himself, did.

    For such folk, there is no “right flank” of politics.

    There is only their own perspective, which they take to be absolute truth.

    Everything else is a lie or based on lies (if not evil).

  7. Submitted by Robert Gauthier on 02/22/2016 - 09:48 pm.

    Actually I fully disagree

    The right wing agenda, under the guise of “originalism”, was to block all thought they opposed, no matter how it was distorted to be law by their political leanings. We do not need a “liberal block” to achieve law, we need a court that actually acts like it should in the historical- the original originalism- to interpret vagueness and appropriateness of law into the modern times.

    The NRA rulings are a joke legally, the Constitution clearly never intended to let disturbed people carry guns to intimidate and threaten people they disagreed with. Scalia twisted the law to serve his parties puppet masters. As did his colleagues.

    WE don’t need a liberal block to act like the polar opposite of the past ten years, we need honest people with open minds who do not pursue well paying political jobs for their spouses, (Thomas), their children (Scalia), etc. These people were living evidence that absolute power, in the form of lifetime appointments, is absolutely corrupting. Scalia even contradicted himself in his later years.

    Appoint smart people with open minds who do not proselytize their politics or religion to serve their popes or party leaders. There have to be some out there.

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