Over the course of American history, there have been great gains in individual freedom and enormous advances in equality for racial minorities, women, and LGBT people. But much remains to be done. Unfortunately, we are now at a profoundly challenging moment for these values. We have a president who is not committed to them, and for the foreseeable future we face the prospect of a hostile supreme court.
But all this will change. Someday there again will be a majority on the court committed to using the constitution to advance liberty and equality. In the meantime, progressives must fight to provide the foundation for their work. In particular, they must develop and defend an alternative to the conservative vision of the US constitution.
Brett Kavanaugh’s confirmation has created a conservative majority on the court that is sure to undermine individual rights and lessen equality. There now are five conservative justices who will explicitly or effectively overrule Roe v Wade, declare unconstitutional all forms of affirmative action, lessen the protection of civil rights, and further erode constitutional protections for criminal defendants.
This is the most conservative court since the mid-1930s, and the five justices that dominate it will be together for years to come. Clarence Thomas is 70 years old. Samuel Alito is 68. John Roberts is 63, while the two newest justices, Neil Gorsuch and Brett Kavanaugh, are 51 and 53 respectively.
In the face of all this, progressives are understandably discouraged. But they have crucial work to do in providing an intellectual framework that current critics and future justices can use to oppose the regressive policies of the Trump administration and the conservatives on the supreme court.
This must begin by showing the intellectual hypocrisy of “originalism”, the conservative approach to constitutional law. Conservative justices pretend that they are just following the original meaning of the constitution and deny that they are imposing their own values on the country. They try to describe themselves as if their values don’t matter. Echoing the language used by John Roberts at his confirmation hearings in 2005, Brett Kavanaugh told the Senate judiciary committee: “A good judge must be an umpire – a neutral and impartial arbiter who favors no litigant or policy … I don’t decide cases based on personal or policy preferences.”
That is nonsense. Supreme court justices are not like umpires at all. Umpires apply rules and have relatively little discretion in determining their meaning. The supreme court creates the rules and justices have enormous discretion in interpreting the law. How a justice votes is very much a result of his or her ideology and views. Clarence Thomas and Ruth Bader Ginsburgdisagree in virtually every major case entirely because of their differing ideologies, not because of anything inherent in the constitution.
This is not new; it always has been the case that supreme court decisions are a product of those sitting on the bench. The constitution was intentionally written in broad, open-ended language that rarely provides guidance for issues that must be resolved by the supreme court. What is “cruel and unusual punishment” or “due process” or “equal protection” cannot be determined by the words of the text or the intent of its drafters, who wrote long ago for a vastly different world. What’s more, no constitutional right is absolute: constitutional cases constantly involve weighing the government’s interest against the claim of a right by some other member of society.
The desire for value-neutral judging in such cases is an impossible quest. The need to balance competing interests is inescapable, and a justice’s own ideology and life experiences inevitably determine how he or she – or anyone interpreting the constitution – strikes that balance. By claiming otherwise, conservatives are trying to create a smokescreen to make Americans think their decisions are based on the “true” meaning of the constitution, when actually their rulings are a product of their own conservative views.
But the progressive vision must do more than simply show the intellectual bankruptcy of originalism. It must explain that constitutional law is always about applying the provisions of the constitution to current problems. It does not try to deny the discretion of the justices or make them seem like umpires, but instead says that discretion should be used to effectuate the underlying values of the constitution.
These values are clearly stated in the first words of the constitution, its preamble. It declares that the constitution is written to create a democratic government, to ensure an effective government, to establish justice, and to secure liberty. Added to these goals should be achieving equality, something omitted from the original constitution, which protected slavery and envisioned no civil rights for women or racial minorities.
The task for progressives is to give content to each of these values and show how the constitution should be interpreted to achieve them. Among other things, a progressive vision of constitutional law must seek to eliminate serious flaws in American democracy, such as the electoral college and racially discriminatory voting laws; champion criminal justice reform, including finally ending the death penalty and ensuring competent counsel for all criminal defendants; and fiercely defend privacy rights, including reproductive autonomy for women.
Addressing race and sex discrimination also requires that progressives interpret the law to curtail government actions that, while perhaps neutral on their faces, have demonstrably discriminatory impacts. And, in the longer term, progressives must make the case for interpreting the constitution to give a right to all Americans to the essential requirements of life: food, shelter, medical care and education.
All of this may seem elusive today with Brett Kavanaugh joining four other conservative justices on the supreme court. As Martin Luther King Jr proclaimed, however, “the arc of the moral universe is long, but it bends towards justice”. A day will come when we have a more progressive court, and we must now build the intellectual framework for that day.
- Irwin Chemerinsky is Dean and Jesse H Choper distinguished professor of law, University of California, Berkeley School of Law, and the author of We the People: A Progressive Reading of the Constitution for the 21st Century