Brett Kavanaugh was sworn in as a Supreme Court justice on October 6, 2018, just hours after the Senate confirmed him by a tense 50–48 vote. Kavanaugh’s nomination was nearly derailed when Christine Blasey Ford accused him of sexually assaulting her in high school. His defenders cast doubt on Ford’s story and insisted that Kavanaugh, a judge on the U.S. Court of Appeals for the D.C. Circuit, was being smeared. On the day of the vote, 164 demonstrators were arrested, including 14 who tried to disrupt the roll call. Minority Leader Chuck Schumer called Kavanaugh’s nomination “one of the saddest moments in the history of the Senate.” Majority Leader Mitch McConnell insisted that the “mob” that had turned out to protest had only made his supporters more resolute.
Much of the anger over the nomination was about the possibility that someone who had sexually assaulted a woman and then lied to the Senate about it was joining the nation’s highest court—and in opinion polls, more Americans said they believed Ford than Kavanaugh. The opposition was also fueled, however, by a widespread belief that if Kavanaugh was confirmed, it would mean a new era for the Court. He would be replacing Anthony Kennedy, who had been the swing justice for more than a decade. Kennedy was unmistakably conservative—he had written the opinion in Citizens United and had joined enthusiastically in many of the Court’s most extreme 5–4 rulings—but he was moderate on some issues. With Kavanaugh in place, it appeared that there would finally be a five-justice majority made up of solid conservatives. Many Court watchers believed his arrival could be the start of an “‘epochal’ shift,” as The Wall Street Journal put it.
For anyone who had been following the Court’s past fifty years of rulings on issues of economic class, it was strange to think that the experts were saying an epochal shift was coming. What had the past half century been if not a steady process of shifting the Court away from its onetime commitment to the middle class and the poor, in favor of the wealthy and powerful? Since 1969, the year that everything began to change, the Court had obliterated the idea that poor people might have a special right to be protected under the Equal Protection Clause—even though they fit the criteria the Court had laid out for “discrete and insular minorities,” groups whose history of oppression and powerlessness entitled them to special consideration. The Court had stopped looking out for the interests of people on welfare, declaring in a landmark 1970 decision that the “intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court.”
The Court had not merely stopped its efforts to lift the boots of oppression off the necks of the poor; it had also gotten in some kicks of its own. One of the most notable of these came in the midst of the Affordable Care Act’s surprise victory in the Court, when Roberts cast an unexpected vote to uphold most of Obamacare. At the same time as he did, he invoked an obscure constitutional doctrine, in a way that it had never been used before, to take health care away from millions of poor people who had been given it by Congress and the president.
The Court had entrenched inequality and racial segregation in the nation’s schools. It decided that the Equal Protection Clause, which was enacted after the Civil War to ensure that all Americans would be treated equally by the government, did not guarantee all of the nation’s children an equally funded public education. Nor did it mean that children had a right to a racially integrated education, as long as the whites in a metropolitan area could get themselves to the other side of a school district line. It also did not mean that a little girl from an impoverished rural family who lived sixteen miles from her public school had the right to a bus ride to get there.
It was not just the poor that the Court had turned on over the past fifty years. The middle class, which was also struggling, fared little better. The Court wiped out the claims of millions of workers who were subjected to discrimination on the basis of race, sex, and age, by twisting employment law in favor of employers. The Court had also become hostile to labor unions, interpreting the New Deal law that was intended to promote unionization of the workforce in ways that weakened the right of workers to organize and act collectively. In a particularly audacious move, it had interpreted the First Amendment to strike down mandatory “fair share” fees for public-sector unions, dealing a major blow to the labor movement.
While the Court denied the poor and the middle class rights to which they were entitled, it invented new ones for wealthy individuals and corporations. It decided that spending money in an election was speech and used that novel principle as a bulldozer to sweep away one campaign finance regulation after another. The Court was not deterred by the crisis that special-interest money was creating for democracy, or by the broad support for campaign finance regulation from Congress, presidents, and the people. It went on to issue a radical ruling that corporations have a First Amendment right to spend unlimited amounts of money from their treasuries to win elections, a decision 80 percent of Americans opposed and 65 percent opposed strongly. With these rulings, the Court ensured that the wealthiest and most powerful people and institutions in society would have an almost insurmountable level of control over government.
The Court showered many more legal gifts on corporations. The same Court that abandoned welfare recipients to their lives of poverty—“the problems of government,” it said with a shrug, “are practical ones and may justify, if they do not require, rough accommodations”—took on as a mission clearing away some of the biggest problems of wealthy corporations. Punitive damages, which had been used to discourage outrageous actions since ancient times, suddenly became suspect, and the Court rushed to rescue major global corporations from damage awards they would barely notice having paid. The Court came to the defense of corporations that used mandatory arbitration clauses to deny consumers they had cheated and workers whose wages they had stolen their day in court.
The Court also eroded the voice that poor and middle-class people had over government—what little was left after it threw open the floodgates of special-interest money. The same Court that would not allow Congress to limit political spending gave its endorsement to voter ID laws that were designed to suppress the votes of poor people and racial minorities, voting roll purges that disenfranchised eligible voters, and partisan gerrymanders that were intended to make the voters as irrelevant to the election process as possible. While the Court gave its blessing to all of these, it removed the heart of the Voting Rights Act—one of the crowning achievements of the civil rights movement, which had been repeatedly reauthorized by large bipartisan majorities in Congress and signed into law by presidents of both parties—by invoking a purported constitutional doctrine that it all but made up.
While the Court was driving the poor and the middle class further down and lifting up wealthy individuals and corporations, it was also changing the criminal law in a way that two justices—one liberal, one conservative—warned had more than a whiff of tyranny. The Court gave its blessing to the police stopping and searching people without any reason to suspect they had done anything wrong, and to seizing the DNA of people who had not been convicted of a crime. As the gap between the wealthiest and poorest Americans was growing to record levels—in significant part because of its own rulings—the Court was helping to usher in what one of its own members warned could be a prison state.
Given that the Court’s past half century was made up of all of this, it raised an obvious question about the talk of an impending epochal change. For fifty years, the conservative majority had waged an unrelenting war on the poor and the middle class and enthusiastically championed wealthy individuals and corporations—and changed the law dramatically to suit its vision of society. After all of this, what could a conservative “epochal shift” mean?
The answer, of course, lay partly in important hot-button social issues. Hardcore conservatives hoped that a purer conservative majority would finally deliver an array of victories that had long eluded them. Anti-abortion activists thought the Court might at last overturn Roe v. Wade and end the constitutional right to abortion. Opponents of affirmative action expected that there might at last be five votes to hold that all selection criteria that take race into account are unconstitutional. Critics of the Court’s decisions recognizing a right to same-sex marriage believed the new majority might declare those rulings a mistake, and roll back gay rights more generally.
The truth was, all of these things were possible. For decades, Roe v. Wade had survived because one of the conservative justices—Sandra Day O’Connor or Anthony Kennedy—defected to the liberals and voted to uphold it. Now that O’Connor was gone and Kavanaugh had replaced Kennedy, it was not certain how long the abortion-rights era would continue.
Affirmative action was also vulnerable. Roberts had laid down a marker in 2007 when he declared that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” He had only four votes for his position, however, with Kennedy writing a separate opinion that was more supportive of race-based remedies. In a big case about affirmative action in university admissions in 2016, Kennedy had voted with the liberals to uphold the use of race, but the mathematics might well be different now.
The future of a constitutional right to same-sex marriage was also unclear, as were gay rights more generally. Kennedy had regularly broken with the conservative bloc in gay rights cases, which were often decided by 5–4 votes. It was possible that with Kennedy gone, the new conservative majority might do away with the right to marriage or hollow it out so that it meant little.
If the Court reversed course in any of these areas, it could have a devastating personal impact on millions of Americans—young women forced into back-alley abortions, racial minorities turned away from leading universities and desirable jobs, gay people denied an equal right to marry. It could also have significant economic effects. Millions of Americans would be made poorer, whether because of the cost of raising a child they did not want or the diminished income from being denied educational and employment opportunities, or the added expenses associated with living as an unmarried couple.
Any of these reversals would advance a long-standing conservative goal: rolling back the progress the nation made in the 1960s—or, in the case of gay rights, that started in the 1960s. Ending the right to abortion, holding that the Constitution does not protect same-sex marriage, or ending affirmative action could all amount to an epochal shift—all the more so if the Court did two or three of them. The epochal shift that some conservative activists have in mind, though, is focused on reversing the gains of an even earlier era: the 1930s.
For many conservatives, the real battleground has always been the New Deal and the way in which it vastly expanded the federal government’s role in the life of the nation. Until President Franklin Roosevelt took office, in 1933, there were virtually no government social welfare programs and nearly no regulatory state: the poor had to look to their families or private charities when they needed help, and the economy operated almost entirely by the principles of laissez-faire capitalism. It was Roosevelt’s New Deal that produced Social Security, federal welfare programs, the federal minimum wage, and a federal right to unionize—and that established agencies to supervise things like the sale of stock and relations between labor and management.
There is a part of the conservative movement that believes the federal government did not have the authority to do any of this. That was true in the 1930s, when the New Deal safety net was being established, and for several years the Supreme Court agreed. It struck down major New Deal legislation, including laws adopted to revive the industrial economy and rescue impoverished farmers. The Court backed down only in 1937, after Roosevelt announced his Court-packing plan, which would have allowed him to appoint additional justices so he could create a pro–New Deal majority on the Court. In the “switch in time that saved nine,” the Court changed course and began upholding New Deal laws.
The goal of these conservatives is returning to a pre-1937 view of the Constitution, before the Court gave in and accepted the New Deal. This has been a drumbeat on the right for some time. At the start of the George W. Bush administration, another time when conservatives were feeling energized, the Federalist Society—the legal group that would later help President Trump choose his Court nominees—sponsored a conference on “Rolling Back the New Deal.” It included a presentation by a prominent law professor on “The Mistakes of 1937.”
More recently, a leading political magazine dubbed these anti–New Deal activists “the Rehabilitationists,” for their goal of bringing back an antiquated understanding of the Constitution. A member of the movement, writing in National Review in 2012, insisted that the powers of the federal government were limited to a few areas, like declaring war and building post offices, and did not include Social Security, health care, or other social welfare programs. “Don’t be cowed,” he said, “by shrieking from the Left.”
A main article of faith among these constitutional conservatives is that the Court has interpreted the Commerce Clause, which provides the basis for upholding much of the federal social safety net, too broadly. Before 1937, the Court regularly struck down legislation, including laws designed to end child labor, for exceeding Congress’s power under the Commerce Clause. If the Court returned to a pre-1937 interpretation of the Commerce Clause, it could conceivably strike down major social welfare and labor laws, including the National Labor Relations Act, which protects the right to form unions, and the Fair Labor Standards Act, which established the federal minimum wage and the federal right to overtime pay.
It is hard to imagine that the Court would ever do anything so radical—and certainly the pressure on it not to strike down laws that are so broadly popular with the American people would be considerable. There was, however, a period in the 1930s when the Court did precisely that. It has also had more recent episodes of Commerce Clause radicalism. In 1995 and 2000, the Rehnquist Court struck down the Gun-Free Schools Act and parts of the Violence Against Women Act, both popular laws, on the grounds that they exceeded the power of Congress under the Commerce Clause.
There have been significant hints from the current Court that it might be interested in changing its approach to the Commerce Clause. Most notably, when Roberts provided the fifth vote to uphold the Affordable Care Act, he refused to say that Congress had the power under the Commerce Clause to impose the individual mandate and instead upheld it under Congress’s taxing power. In his opinion, he emphasized that “the commerce clause is not a general license to regulate an individual from cradle to grave.”
There are ways to read Roberts’s words about the Commerce Clause as not enormously significant, and the specific facts of the case were unusual. Hardline conservatives, however, were enormously excited by the possibilities. “We finally won a three-decades-long battle over the commerce clause,” John Eastman, a conservative law professor at Chapman University, said of Roberts’s opinion. Even Akhil Amar, a liberal Yale law professor, said the decision “reinvigorates a stricter understanding of all the powers of government.” When Barack Obama, as a senator, voted against Roberts’s confirmation, he specifically said that he did not trust Roberts on questions like “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.”
There are other legal hooks, beyond a more restrictive reading of the Commerce Clause, that the Court could use to strip away the legal edifice of the New Deal. By making changes in the arcane area of administrative law, the Court could begin to drastically scale back the power of federal agencies, which since the 1930s have become an important force for keeping abusive business practices in check. In the area of workers’ rights, the erosion has already begun. In Janus v. American Federation of State, County and Municipal Employees, the Court significantly wounded public-sector unions with a ruling under the First Amendment. In Epic Systems v. Lewis, it struck a major blow against the right of workers to act collectively under the NLRA by invoking the Federal Arbitration Act. At the oral argument in Epic Systems, Breyer made clear precisely what the Court was up to: the case, he said, was aimed at “the entire heart of the New Deal.” These rumblings of opposition to federal power, the social safety net, and workers’ rights could just be the start of a truly epochal change in the law—and the nation.
The Supreme Court is more than a legal tribunal, ruling on disputes between parties—it is also an architect. The Court’s interpretations of the Constitution and other laws become blueprints for the nation, helping to determine what form it will take and how it will continue to rise. For the past half century, the Court has been drawing up plans for a more economically unequal nation, and that is the America that is now being built.
The Court’s rulings have helped to produce historic gaps between the most well-off and the least. Wealth inequality is once again where it stood at in 1929, just before the Great Depression began. The top 1 percent of Americans control about 40 percent of the nation’s wealth. Much of the rest of the country is only scraping by. A survey by an employment website in 2017 found that 78 percent of Americans said they were living paycheck to paycheck.
The inequality trajectory the nation is on is not sustainable, something societal leaders have begun to speak out about. President Obama has called income inequality “the defining challenge of our time,” and Warren Buffett has said that wealth inequality “has widened and will continue to widen unless something is done about it.” In 2019, Ray Dalio, the founder of one of the world’s largest hedge funds, declared that increasing economic inequality poses an “existential threat” to America. He warned that inequities of this kind—the kind that saw his own personal net worth soar to more than $18 billion—lead to “increasing conflict,” “populism of the left and populism of the right,” and, often, “revolutions of one sort or another.” Dalio called on the nation’s leaders to start treating wealth and income inequality as the national emergency it is.
With all of the discussion of where the new conservative majority will lead the nation, it is hard to remember that there was a time when the Court was moving it in the opposite direction. Under only slightly different historical circumstances, the Warren Court could have continued on its path, as Warren and President Johnson hoped it would when they met in June 1968. It could have designated the poor as a suspect class and used that special level of protection to ensure that the nation’s welfare programs did a better job of providing for the Americans who needed them. It could have ensured equal school funding for all children, and it could have required states to provide integrated education regardless of school district lines. It could have upheld limits on campaign spending and struck down barriers to voting. It could have sided with workers more than corporations, and defendants more than prosecutors.
That different set of blueprints would have built a different society. For the past five decades, all families could have been lifted above the poverty line. All children could have attended schools that were adequately funded and racially integrated. There could have been elections that were decided by the most persuasive arguments to the electorate, not by special-interest money, and a government that put the public’s interest ahead of the billionaires’. There could have been workplaces with less discrimination and more unions, and prisons with fewer inmates.
The Court, in other words, could have helped to create a society with more equality, inclusion, and opportunity for all. As Edward Sparer, the leader of the poverty law movement, said so many years ago, it “could have led to a different America.”