The Supreme Court’s ‘Dead Hand’

The Supreme Court has set itself on a collision course with the forces of change in an inexorably diversifying America.

The six Republican-appointed Supreme Court justices have been nominated and confirmed by GOP presidents and senators representing the voters least exposed, and often most hostile, to the demographic and cultural changes remaking 21st-century American life. Now the GOP Court majority is moving at an accelerating pace to impose that coalition’s preferences on issues such as abortion, voting rights, and affirmative action.

On all of these fronts, and others, the Republican justices are siding with what America has been—a mostly white, Christian, and heavily rural nation—over the urbanized, racially and religiously diverse country America is becoming.

“The Court seems to be pulling the United States back into a prior era without regard for changing notions and understandings of equity, equality, and fairness,” Sarah Warbelow, the legal director for the Human Rights Campaign, which advocates for LGBTQ rights, told me. “It is about almost trying to maintain a 1940s, 1950s view of what the United States is and what its obligations are to its citizens.”

In this backward-facing crusade, the majority may be risking the kind of political explosion that rocked the Court at two pivotal earlier moments in American history, the 1850s and 1930s. In each of those decades, a Supreme Court that also was nominated and confirmed primarily by a political coalition reflecting an earlier majority similarly positioned itself as a bulwark against the preferences of the emerging America. In the 1850s, the Court tried to block the new Republican Party’s agenda to stop the spread of slavery just as the Abraham Lincoln–era GOP was establishing itself as the dominant political force in the free states; in the 1930s, the Court sought to derail newly elected President Franklin D. Roosevelt’s agenda to manage the economy, regulate business, and expand the social safety net just as his New Deal electoral coalition was beginning decades of electoral dominance.

Read: The revolution will be improvised

Though the legal battles of the 1850s, the 1930s, and today turn on different policies and personalities across three different centuries, they ultimately raise the same question: How long will rising generations allow what Roosevelt called the “dead hand” of a Court rooted in an earlier time to block their priorities?

No possible revisions to the Court’s structure—be they adding members or imposing term limits—now seem politically viable, but that could change through the 2020s if the GOP majority continues on its aggressive trajectory. Robert P. Jones, the founder and CEO of the nonpartisan Public Religion Research Institute, predicts that the GOP majority’s attempt to “wrench this country back” to a time when a “conservative Christian white hierarchy” set society’s cultural norms and expectations will eventually ignite rising demands for reform. “If it is consistently clearly moving in a trajectory that people know is out of step with the country, then … we’re really in a democratic crisis,” he told me. “Not because of people assaulting the Capitol but because the institutions have lost their legitimacy and people see them as really exercises in raw power.”

Because justices typically serve for long periods, the Court always bears the imprint of earlier presidents (who nominated them) and senators (who confirmed them). But that characteristic can become much more combustible when justices installed by an earlier political majority systematically move to block the agenda of the coalition that succeeds it.

One example came in the 1850s when the Supreme Court led by Chief Justice Roger Taney regularly sided with the South in legal disputes over slavery. That struggle peaked in 1857 when the Court issued the notorious Dred Scott decision, declaring that freed Black people could never be citizens and that Congress could not prohibit slavery in the western territories.

Democrats had dominated the White House for roughly three decades before the decision, and the South had dominated the party’s view toward slavery in that era. That was reflected in the Court’s composition when it ruled on Dred Scott: At that point, seven of its nine members had been appointed by Democratic presidents who were either southerners (Andrew Jackson, James K. Polk) or northerners committed to protecting slavery (Martin Van Buren, Franklin Pierce.)

But the ruling came as the free states were largely outstripping the South in both population and economic output, and the new Republican Party was emerging as their dominant political voice.

Precisely as the GOP was rising in influence, the Dred Scott decision essentially declared unconstitutional its platform, which was grounded on a promise to block the expansion of slavery into the territories.

Events overran the Taney Court’s efforts to defend slavery when Lincoln, as the GOP’s second nominee ever, won the presidency in 1860, and the South seceded before he took office. After the Civil War, the GOP congressional majorities settled their prewar struggle with the Supreme Court by approving the Thirteenth, Fourteenth, and Fifteenth Amendments that ended slavery, established citizenship for the freed people, and sought to guarantee them civil and voting rights. (It was both ironic and tragic when Supreme Court justices chosen mostly by Lincoln’s Republican successors allowed white southerners to undermine those protections through a procession of late-19th-century rulings that opened the door to “separate but equal” segregation.)

The conservative justices appointed mostly by Republican presidents from Lincoln through Herbert Hoover—a period when the GOP controlled the White House for 56 of 72 years—precipitated the next confrontation between an emerging political majority and a Court rooted in an older era. When FDR took office in 1933, seven of the Court’s nine members had been appointed by those earlier Republican presidents. The justices’ ideological leanings did not align with their partisan pedigree as completely then as they do today—Democratic President Woodrow Wilson appointed one of the Court’s staunch conservatives and Hoover one of its top liberals—but GOP choices dominated the right-leaning bloc that controlled the Court.

Starting in the 1890s, that conservative Court majority steadily invalidated progressive-era state and federal laws to limit working hours, ban child labor, impose a federal income tax, break up monopolies, and establish a minimum wage. As “radical and reform movements sprang up to combat the injustices of the industrial era, conservative judges saw themselves as fighting a holy war” to protect American traditions of individual liberty, as the historian Jeff Shesol wrote in Supreme Power, his 2010 book about FDR’s confrontations with the Court.

Read: The bitter origins of the fight over big government

The crusading zeal of the Court’s conservative majority crashed directly into the agenda of Roosevelt and the massive Democratic congressional majorities elected in 1932. Through FDR’s first years, the Supreme Court overturned a succession of his New Deal laws.

Roosevelt and his contemporaries viewed his confrontations with the Court as a battle against the lingering influence of a defeated and displaced political coalition. Robert Jackson, who served FDR as attorney general and later was a Supreme Court justice himself, flatly described the judiciary as “the check of a preceding generation on the current one … and nearly always the check of a rejected regime on the one in being.”

This extended struggle (which peaked in the 1935–36 Court session) inspired Roosevelt’s 1937 proposal to “pack” the Court by adding more members. That legislation famously failed, but as Congress weighed it, two of the Court’s conservatives tilted toward support of key New Deal laws in a new round of cases—the heralded “switch in time that saved nine.” This confrontation ended when deaths and retirement allowed FDR to appoint a liberal majority on the Court, which Democrats reinforced while holding the White House and the Senate for most of the period from 1932 to 1968.

It’s unlikely that today’s Democrats—even though they have won the popular vote in an unprecedented seven of the past eight presidential elections—can establish anything near the lasting political dominance of the Lincoln-era Republicans or the FDR-era Democrats. Yet the rising conflict between the party and the GOP Court majority parallels these earlier episodes in one key respect.

In both the 1850s and the 1930s, the conservative Court majority spoke for the forces most resistant to a changing America—in the first instance, the southerners alarmed about the growing population advantage of the industrializing North; in the second, both the small-town and rural conservatives hostile to big cities swelling with immigrants and the Gilded Age business tycoons fighting new demands from workers and consumers.

Now, as then, a conservative Court majority rooted in the places least affected by change is asserting a central role in the political struggle between America’s past and future. Consider religion. White Christians, who constituted a majority of Americans for most of the nation’s history, have fallen to about 44 percent of the total as the nation has grown more demographically and religiously diverse, according to the latest PRRI national data. But in PRRI surveys, about two-thirds of Republicans still identify as white Christians (a level last reached for the country overall in the mid-1990s). In 25 states, white Christians now constitute 49 percent of the population or more, per the PRRI’s findings. In 2020, Donald Trump won 18 of them. Those same states elected 37 of the 50 Republican senators.

Immigration tells a similar story. The share of Americans born abroad has been steadily rising toward its highest level since the Melting Pot era at the turn of the 20th century. But Trump in 2020 won only two of the 20 states with the highest percentage of foreign-born residents, according to census figures, and Republicans hold only four of their 40 Senate seats. The GOP tilts toward the places least affected by immigration: Trump won 17 of the 20 states with the lowest share of foreign-born residents, and those same states elected 33 of the 50 GOP senators. Combined, those 20 low-immigration states account for only a little more than one-fifth of the nation’s total population.

The same contrast extends to measures of economic change. Republicans dominate the states with the fewest college graduates but struggle in those with the most, as well as in the states where the highest share of the workforce is employed in science, engineering, and computer occupations, all defining industries of the new knowledge economy. The 22 states with the biggest share of such workers have elected just six Republican senators, while fully 31 of the GOP’s Senate caucus represent the 20 states with the smallest share of such employment, according to census figures. Republicans are much stronger in states that rely on the powerhouse industries of the 20th century: agriculture, energy extraction, and manufacturing.

Centered in these places least affected by all the transitions remaking 21st-century America, what I’ve called the Republican “coalition of restoration” has developed a much more critical view of social and demographic change than the rest of society. In PRRI polling, for instance, although two-thirds of Republicans say abortion should be illegal in all or most circumstances, 70 percent of all other Americans say it should remain legal in all or most cases. While a 55 percent majority of Republicans say small-business owners should be permitted to deny service to same-sex couples on religious grounds, almost three-fourths of everyone else disagrees. And while about three-fourths of Republicans say discrimination against white people is now as big a problem as bias against Black people, more than two-thirds of everyone else rejects that idea.

Yet on these fronts and others, the GOP-appointed Court majority appears ready to tilt the law sharply toward the coalition of restoration’s preferences. Warbelow, of the Human Rights Campaign, said that by declaring its intention to reconsider earlier rulings on abortion, affirmative action, and perhaps other fronts such as public prayer, the GOP majority is inverting the Court’s usual motivation for revisiting precedent. Historically when the Court has done so, she said, “it has been to rectify past wrongs in a way that creates greater rights for all Americans. But the cases that the Court is now considering … are not about expanding rights; they are about restricting rights [and] perpetuating a very narrow view of who should be able to operate fully within the world.”

Compounding that tension is another dynamic: The Republican Court majority is growing more aggressive as the groups most threatened by its direction are growing in numbers.

The 2020 census, for instance, was the first time that kids of color constituted a majority of the nation’s under-18 population, and the class that enters school in September is projected to be the last one ever in which white students will compose a majority of the nation’s public-high-school graduates, according to federal projections. Yet precisely at this moment, the GOP majority appears ready to further constrain, or perhaps eliminate entirely, the affirmative-action programs for minority admissions to colleges and universities that the Court has authorized in one form or another since a landmark 1978 ruling. Similarly, the Court majority has repeatedly retrenched federal voting-rights protections for minorities even as kids of color compose the majority of citizens turning 18 in many of the red states moving most forcefully to limit voter access.

Read: The Republican axis reversing the rights revolution

The Court’s upcoming rulings on abortion could trigger similar conflict with generations of younger women who have grown up assuming that right would be perennially available. And though the Court has generally favored expanding rights for same-sex couples, an overturning of Roe that weakens the right to privacy could eventually threaten some of their gains as well, even as far more young people than ever before openly identify in polls as part of the LGBTQ community. A Roe reversal, in fact, could be just the first domino threatening other rulings that have allowed for greater personal freedom in many areas of family life and intimate relationships.

Most Court watchers believe the fear of losing legitimacy led Chief Justice John Roberts to sand down some of the sharpest edges from rulings while the GOP Justices held only a 5–4 majority, until Justice Ruth Bader Ginsburg’s death in 2020. But with Republicans now holding a 6–3 advantage—and five justices clearly to his right—whatever restraining influence Roberts once had has been attenuated, as demonstrated by the willingness of those five to outvote him and the three Democratic appointees on this week’s case on voting rights in Alabama. Now a wide array of groups rooted in the changing America—particularly organizations that advocate for greater equity on grounds of race, gender, and sexual orientation—are openly wondering what boundaries, if any, will constrain the GOP majority.

Shesol, the historian, thinks the answer is: very few. He’s dubious that the conservative majority will moderate over time, or that even a big public backlash against its decisions will deter it. “If you look back over the centuries,” he said, Court majorities have been “pretty good at riding it out” when they face public criticism. “They are very insulated by design.”

The 1930s confrontation between a conservative Court and President Roosevelt that Shesol chronicled might be the most visible exception to that rule. But, he noted, the majority that backed down before FDR had been blocking progressive legislation for decades and may have lost some of its energy for the fight. To Shesol, this Court looks more like the conservative Court majorities at the height of their power around the turn of the 20th century than the depleted version Roosevelt ultimately conquered.

“The 1930s was the end game,” Shesol told me. “Given the youth of these justices, given the scale of their majority on the Court, and given their zealousness, I worry we are in a similar situation as the 1890s—that we are in the beginning stages of a decades-long struggle.”