Read the talking points
As a new Supreme Court term opens today, it is clear that the Court now includes a core of four hard-line conservatives—Chief Justice Roberts and Justices Alito, Scalia, and Thomas—who are eager to implement a bold, longstanding plan for radically remaking the Supreme Court’s jurisprudence.
Together these justices form a solidly conservative bloc that votes together time after time and reaches the results sought by political conservatives. That much has been widely noted. What is less well known is that these staunch conservatives are carrying out a predetermined agenda that was first formulated in the Meese-led Justice Department of the 1980s.
The Reagan-era Justice Department led by Attorney General Edwin Meese—in which both John Roberts and Samuel Alito served—released a series of documents outlining its view of the Constitution. The Guidelines on Constitutional Litigation,[i] ordered Justice Department litigators to advance a particular view of the Constitution, listing decisions it viewed as “consistent” and “inconsistent” with the Reagan administration’s interpretation of the nation’s founding document.
In The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation,[ii] the Attorney General’s advisors predicted what constitutional questions would be controversial during the 1990s and subtly suggested the administration’s preferred answers to these questions itself. This document also made clear that the way to achieve the desired changes in the law was through judicial appointments, saying, “There are few factors that are more critical to determining the course of the Nation, and yet are more often overlooked, than the values and philosophies of the men and women who populate the third co-equal branch of the national government – the federal judiciary.”[iii]
These two documents together formed a roadmap for moving the law in the service of an agenda. Under the leadership of Chief Justice Rehnquist, the Court made considerable headway down the charted path, most notably in the area of “federalism”—restricting the power of Congress to protect the public interest. But with O’Connor on the Court, the conservatives sometimes lacked the necessary five votes.
Now, Roberts and Alito share the driver’s seat, are following the predetermined route, and have already approached several of the desired destinations. There are four areas in particular where the Roberts bloc on the Court has already furthered, or sought to further, the very agenda laid out in the Meese documents: access to the justice, abortion rights, voluntary school desegregation, and the exclusionary rule barring the use of unlawfully seized evidence against a criminal defendant.
Access to Justice
The Meese Position: The Reagan/Meese documents take a limited view of the federal judiciary’s power. They argue that only a narrow band of plaintiffs should be allowed to seek redress in federal court, and that the courts should be allowed to provide only narrow relief to injured plaintiffs. The Guidelines pay particular attention to standing, emphasizing that plaintiffs with “abstract or speculative injuries” should not have access to federal courts and that a firm “causal link” between unlawful conduct and the particular injury must exist.[iv] Significantly, the Guidelines also state that a decision reducing taxpayer standing in Establishment Clause suits is “consistent” with the Meese viewpoint,[v] while two decisions finding standing in environmental cases are “inconsistent.”[vi]
The Guidelines call for limiting federal courts’ power to redress injury in two ways. First, they order government attorneys to “urge courts to use equitable relief sparingly,” and second, they discourage relief which “affects a number of interests, some not represented by the parties.”[vii]
The Roberts bloc: The Court’s conservative bloc adopted a narrow view of standing similar to that espoused by the Guidelines in Massachusetts v. EPA by arguing in a dissenting opinion that a state does not have standing to assert that the EPA “abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases.”[viii] Chief Justice Roberts, in his opinion, claimed that the state’s claim of injury was “pure conjecture.”[ix]
According to the Chief Justice, even though Massachusetts alleged that global warming is causing it to lose coastline as seas rise, this claim is insufficient to allow standing because it rests upon a “single conclusory statement.”[x] Similarly, the Roberts opinion dismisses the causal link between the actions of the EPA and the injury asserted here, arguing that “[p]etitioners are never able to trace their alleged injures back . . . to the fractional amount of global emissions that might have been limited with EPA standards.”[xi]
The Roberts Court also took a substantial step toward eliminating taxpayer standing in Establishment Clause suits last term. In Hein v. Freedom From Religion Foundation,[xii] a plurality opinion by Justice Alito held that a party challenging an action of the executive branch under the Establishment Clause may not assert standing as a taxpayer because taxpayer standing under the Establishment Clause is limited to challenges to “specific congressional appropriation[s].”[xiii]
Justices Scalia and Thomas accused the plurality of creating a “new meaningless distinction” between programs that are expressly authorized by Congressional statute (for which taxpayer standing is still allowed) and other government programs, [xiv] and called upon the Court to change its decision in Flast v. Cohen[xv] and forbid taxpayer standing in any Establishment Clause case.[xvi]
Two other decisions last term also adopted the narrow Guidelines view of the judiciary’s power to grant relief. In Bowles v. Russell,[xvii] a 5-4 Roberts Court held that it could not create an “equitable exception” to a deadline governing appeals of denied habeas petitions even though the petitioner relied on an order by a federal district judge instructing him that he had a longer deadline than the one granted by statute.[xviii] And in Philip Morris v. Williams,[xix] the Roberts Court adopted a position similar to the Guidelines view of relief affecting interests “not represented by the parties.” That case held that “the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties . . . .”[xx]
The Meese Position: The Guidelines are hostile to reproductive freedom; indeed the very first cases listed as “inconsistent” with their viewpoint are the “so-called ‘right of privacy’ cases,” which the Guidelines say “provide examples of judicial creation of rights not reasonably found in the Constitution.”[xxi] The Guidelines say of Roe v. Wade in particular that it is “a very bad decision . . . it is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”[xxii]
The Roberts bloc: In Gonzales v. Carhart,[xxiii] the Roberts Court held, for the first time since Roe v. Wade, that a statute that prohibits an abortion procedure did not need to contain an exception for the health of the woman.[xxiv] The Court also hinted that it may revisit its core holdings in Roe and Planned Parenthood v. Casey, [xxv] stating that it would only “assume . . . for purposes of this opinion,” that the abortion right may not be subjected to an undue burden.[xxvi]
Voluntary School Desegregation
The Meese Position: One year after its landmark decision in Brown v. Board of Education, the Supreme Court issued another decision allowing the South to move forward with “all deliberate speed.”[xxvii] Nine years later, it became clear that the South was engaging in “entirely too much deliberation and not enough speed,”[xxviii] and so the Supreme Court changed course.
In Swann v. Charlotte-Mecklenburg Board of Education,[xxix] the Court held that “[o]nce a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad,”[xxx] and approved of several broad remedies to enforce the Brown decision. According to the Guidelines, this decision in Swann is improper “judicial administration of school systems.”[xxxi] The guidelines list Swann as “inconsistent” with their vision of the law, instead requiring government attorneys to “urge courts to use equitable relief sparingly.”[xxxii]
The Guidelines position is that the courts should not have broad equitable power to integrate schools, even if this means that American public schools regress into segregation. This view was largely adopted by the Rehnquist Court in Board of Education v. Dowell,[xxxiii] which held that a once-segregated school district, which momentarily desegregated pursuant to a court order, must be returned to local control even if the local school board planned to implement a plan that recreated segregation.[xxxiv] Under Dowell, the previously segregated district stands on the same footing as any other district, and can only be placed under a new court order if a plaintiff can demonstrate racially invidious intent.
The Roberts bloc: The Roberts Court has taken a position even more hostile to public school integration. In Parents Involved v. Seattle School District,[xxxv] the Roberts Court struck down two locally enacted plans in which school boards sought to voluntarily remedy segregation by integrating their districts in the absence of a court order.[xxxvi] Significantly, this decision built upon the Rehnquist Court’s decision in Dowell, holding that a previously segregated district that had once been under a court desegregation order did not have a compelling interest in remedying past segregation because once that district “achieved unitary status it had remedied the constitutional wrong that allowed race-based assignments.” Under the Roberts Court’s view, “[a]ny continued use of race must be justified on some other basis.”[xxxvii] Four Justices, including the Court’s newest members, would have gone even further, holding that any use of race in school assignments is unconstitutional.[xxxviii]
The Exclusionary Rule
The Meese Position: A unanimous Supreme Court held in the 1914 Weeks v. United States[xxxix] decision that when a federal agent unlawfully seizes evidence from a criminal suspect, this evidence must be excluded from a criminal proceeding against that individual.[xl] The Guidelines, however, criticize this 93 year-old “Exclusionary Rule,” saying that it “lacks a constitutional basis.”[xli] They further instruct prosecutors to urge that the Exclusionary Rule not be applied in cases where a “more efficacious sanction,” such as disciplinary action or civil suit against the officer violating the Constitution, may be applied.[xlii]
The Roberts bloc: In Hudson v. Michigan,[xliii] decided shortly after Justice Alito’s confirmation, the Roberts Court created a broad new exception to the Exclusionary Rule. Hudson held that the Exclusionary Rule should not be applied to the Fourth Amendment’s requirement that police “knock and announce” themselves before entering a suspect’s home. In so holding, the Court explained that the knock and announce rule exists to protect interests such as preventing “violence in supposed self-defense by the surprised resident,” giving the suspect “the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry,” and giving residents “the ‘opportunity to prepare themselves for’ the entry of the police.” These interests, the Court reasoned, have “nothing to do with the seizure of the evidence,” and thus the Court held that the exclusionary rule should not apply.[xliv]
Under the headline “Exclusionary Rule in Trouble?” Supreme Court reporter Lyle Denniston wrote that this decision “raises significant new questions about how sturdy the ‘exclusionary rule’ is as a remedy for constitutional violations by police.”[xlv] The Court justified this substantial incursion into a 93-year-old rule with a policy argument that could have been lifted straight out of the Guidelines.
The Guidelines suggested that the Exclusionary Rule should not be applied “where the responsible officer will or has been subjected to disciplinary action” or “where a civil suit is pending against the responsible officer.”[xlvi] Similarly, Hudson held that new developments in the law since the Exclusionary rule was originally applied to the states—such as the expansion of civil rights plaintiffs’ access to § 1983 suits, the provision of attorneys fees to victorious parties in such suits and “a new emphasis on internal police discipline”—justify creating broad exceptions to the Exclusionary Rule.[xlvii]
If Denniston is right, then Hudson may be one of the last gasps of the Exclusionary Rule. Equally significant, however, is the 18-year history behind the Hudson decision. The same policy argument that moved the Court in Hudson is the very one advanced by the Meese Justice Department in the Guidelines.
The members of the Court’s new hard-line conservative bloc are men on a mission. The Roberts Court has completed only one full term since Justice Alito joined its membership, but already it has begun advancing the agenda laid out 18 years ago in the Meese documents. With Roberts at the helm, regularly joined by Alito, Scalia, and Thomas, the new conservative bloc has taken aim at key areas of the law first targeted in the Meese Justice Department.
But this is only the beginning. Other important areas covered in the Meese documents, such as federalism, takings, the executive power of the president, and the substance of the Establishment Clause, have not yet come before the Roberts Court. It will, however, have ample opportunities to address these issues in the future. This Court is young, with many years ahead to complete the job. Those who might wonder what the future holds need only consult the roadmap of the 1980s, and then look at the long list of Supreme Court cases decided by 5-4 votes, with O’Connor providing the margin of difference. If a vacancy occurs on the Court and another Justice like Roberts or Alito joins the conservative bloc, even more will be at risk.
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[i] U.S. Dep’t of Justice, Office of Legal Pol’y, Guidelines on Constitutional Litigation (Feb. 19, 1988) [hereinafter Guidelines].
[ii] U.S. Dep’t of Justice, Office of Legal Pol’y, The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation (Oct. 11, 1988) [hereinafter Choices].
[iii] Choices, supra n. 1 at v.
[iv] Guidelines supra note, at 17–18.
[v] Id. at 26 (citing Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982).
[ix] Id. at 1467 (Roberts, C.J., dissenting).
[xi] Id. at 1469 (Roberts, C.J., dissenting).
[xii] __ S.Ct. __, 2007 WL 1803960 (2007).
[xvi] Hein, 2007 WL 1803960 at 20.
[xix] 127 S.Ct. 1057 (2007).
[xxi] Guidelines supra note, at 8.
[xxii] Guidelines supra note, at 82–3 (quoting John H. Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 902, 947 (1973) (footnote omitted)).
[xxiv] Id. at 1641 (Ginsburg, J., dissenting).
[xxv] 505 U.S. 833 (1992).
[xxvii] Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955) (hereinafter “Brown II”).
[xxviii] Griffin v. County Sch. Bd., 377 U.S. 218, 229 (1964).
[xxxi] Guidelines supra note, at 120.
[xxxii] Guidelines supra note, at 118–20
[xxxiv] See Gary Orfield & Susan E. Eaton, Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education 19 (1996) (“A court-supervised district that has never been declared unitary is obligated under the law to avoid actions that create segregated and unequal schools. But after a declaration of unitary status, the courts presume any government action creating racially segregated schools to be innocent….”).
[xxxv] __ S.Ct. __, 2007 WL 1836531 (2007).
[xl] Id. at 393. This rule was later extended to violations of the Fourth Amendment by state officers. Mapp v. Ohio, 367 U.S. 643, 653 (1961).
[xli] Guidelines supra note, at 87.
[xlv] Lyle Denniston, Analysis: Exclusionary rule in trouble?, SCOTUSBlog (June 15, 2006), available at SCOTUS Blog.
[xlvi] Guidelines supra note, at 89.