With the passing of Justice Scalia, and with the nomination of a centrist judge who probably will not be confirmed, we should ask what difference it would make a newly elected Democratic President appointed a liberal judge creating a liberal majority on the Court. Most recognize that the general trend of decisions by the Court in which Justice Scalia played an important role would be quite different than they are now. That Court undermined health, safety, and environmental regulations and otherwise acted in ways celebrated by the Chamber of Commerce. It overturned the Voting Rights Act, and it upheld state regulations designed to make it more difficult for Democrats to vote. It used the First Amendment to overturn campaign finance regulations and was on the verge of using the same amendment to weaken unions. The Court smothered dissent: upholding bureaucrats who sought to censor the speech of public employees, students, and prisoners. The Court weakened affirmative action programs and upheld attempts to burden the process of securing an abortion. The Court supported gun rights in the home and to some extent outside the home. And it gave stingy interpretations of our Fourth, Fifth, and Sixth Amendment rights.
I would expect a liberal Court to reverse these trends, overruling cases or reading them narrowly. But there is more. It takes four justices to vote to hear a case. Liberal Justices on a conservative Court will not vote to hear a case that would permit the conservatives to create a bad precedent. If the liberals controlled the Court, the agenda of the Court would look very different.
In particular, I would expect the Court once again to confront discrimination against the poor. For example, in the 1973 by a five to four margin, the Court affirmed a system of allocating funds to education based on the wealth of the neighborhood in which the schools were located. The result was that wealthy school districts had more money for education than poor school districts. A liberal Court would decide that education is too important to shortchange poor children just because they live in poor neighborhoods. It would rule, as California once did, that educational resources should be distributed to meet educational needs, regardless of property tax contributions. Indeed, one could expect concerns of this type to extend to police protection, fire protection, even to garbage collection. In addition, the obscene system of fines and penalties imposed upon indigent defendants regarding traffic offenses and petty crimes would be reined in. So too, the Court could be expected to make it more difficult for states to cut people off welfare and more difficult for states to arbitrarily set limits on the number of children in a family the state could support.
This is not to say that the Court would rule that minimum welfare is a general constitutional requirement. But it would take seriously considerations of due process and equality in evaluating systems of regulation that are insensitive to the needs of the poor. This is no small thing. The Republican Party has done little to disguise contempt for the poor. Meanwhile, the Democratic Party’s record has been far short of satisfactory ever since Bill Clinton “changed welfare as we know it,” to the detriment of the poor.
Our Supreme Court functions at its best when it stands as a counter majoritarian force preserving democracy and dissent while protecting the vulnerable. We could expect that from a liberal Court and for the first time in more than forty years we have a chance of realizing that promise.