Constitutional Revolutions, Great and Small (Or, Sudden and Gradual)

I was thinking this morning of an email exchange I'd had with a friend and former colleague a few weeks ago. He was concerned that the Roberts nomination tied to another nomination could lead to a "Constitutionbal Revolution," comparable to the "constitutional revolution, limited" of the New Deal period. I am not so inclined, for the reason(s) that follow(s). (Setting aside, for the moment, whether a constitutional revolution may be a good idea at this point.)

The idea of a "constitutional revolution" is pretty vague, but it basically boils down to the Court overruling a bunch of its precedents and dramatically changing course, just as the Court did after 1937--permitting expansive congressional regulation of the economy, the whole Carolene Products footnote "thing," and so on. The reason I don't think that this will happen is that there just aren't that many precedents for the Court to overrule at this point. Almost the entire discussion here is about Roe, and from the choice perspective, that would be a big deal. But. I think the Court is exceedingly unlikely to flat-out overrule Roe, after Casey, and after chipping away at the foundations of Roe for the last decade-plus. I mean, Roe still stands, but states have a lot of power to regulate abortions today. That power might be expanded, but in practical terms, the anti-abortion forces have already won in broad terms. In many parts of the Union, it's just not possible to get a legal abortion. Little would be gained, in practical terms, in going the rest of the way. Sure, there are the life-absolutists, like Brownback, but the Court would take a huge hit in its prestige by going along with that crowd. And the fact is, you still have Stevens, Kennedy, Souter, Ginsburg and Breyer, even if the O'Connor seat goes to an ardent pro-lifer, willing to vote to overrule Roe. (The name of the game is five votes. If you're pro-choice, Stevens is the key vote. If you're anti-choice, then Stevens is the key vote. What I'm trying to say is that Stevens is the key vote, barring unforeseen events.)

Once we're past Roe, what other precedents are there to overrule? I have a hard time coming up with a list. Lawrence? OK, so the states can recriminalize same-sex sodomy. The capital punishment for minors case (Roper)? I guess it's possible, but any such case would be in an unusual procedural posture, which, if you're interested in such things, you can puzzle out for yourself.

The sad thing is that we've already lived through the constitutional revolution. It was just so gradual that we didn't notice. (Remember the one about the frog in the pot of water? As the temperature increased, he never noticed.) The courts and Congress have chipped away at older precedents; they've put a strangehold on access to the courts for all sorts of constitutional claims. At this point, what more could they realistically do?

Not much. Not really. The administrative state is a given. Plus, the Republicans have learned that the real way to undermine regulation is to control the executive branch (personnel) and Congress (budgets) rather than head-on through eliminating agencies. (Not to mention heightened standing requirements in the courts, which undermine public interest litigation.) Sure, we might get a few "property rights" decisions, undermining state regulations, but the battle is largely over at the federal level. (The air and water lost.) Conservatives might chip away, further, at civil rights, or, more properly, access to federal courts for civil rights claimants, but I can't see anything big there. All that First Amendment stuff? The wall between church and state is already pretty porous, with school vouchers and all. I guess they could restore prayer to the public schools, giving the religious Right something of a symbolic victory. But really, again, in practical terms the levels of non-compliance here are so high that this would be purely symbolic. New restrictions on speech would affect large corporations, so I don't expect much along those lines. Further restrictions on habeas petitioners? What would be the point?

The constitutional revolution has already happened. We might still teach the Warren Court precedents, with their expansive definitions of rights, but the law today is all about the Rehnquist (and Burger) era barriers to making claims based on those rights in court. You can have all the rights in the world, but so long as you can almost never prevail on the basis of those rights, in court, they don't really matter.

Even better, from a practical-conservative perspective: if you win on the access issues, but give way on the precedents, it doesn't look like you've actually won. It looks like Roe, Miranda, Mapp, etc., are all still on the books. And they are. Now, symbolically, you might still stew about those liberal precedents. But in terms of real-world impact, they are mostly a dead-letter.