This likely depends on the result of the November election - but this seems to be the convention wisdom.
- Click here for the article.
- Click here for the article.
. . . conservatives may find themselves in a position analogous to the one that liberals occupied in the 1970s and '80s. For several decades before that, the Supreme Court had been generally friendly to progressive causes, and liberals and conservatives alike had come to see the Supreme Court as a liberal institution. On a broad range of issues, constitutional law moved to the left. But many of the most ambitious left-leaning constitutional causes of that era ultimately fell short of their goals. The Supreme Court invalidated deliberate racial segregation in the 1950s and '60s, but it refused in the '70s to take the further step of requiring affirmative steps to end de facto segregation—with the result that many liberals animated by a vision of racial integration came to see their prior victories as hollow and the ultimate result as disappointing.
Similarly, the court in the 1970s closed the door on various liberal strategies for using constitutional law to effect economic redistribution. During the Nixon administration, leading liberals took seriously the idea that the Constitution should be interpreted to guarantee a minimum income to all adult citizens, or at least that public schools must be given equal per-pupil funding regardless of the local property tax bases of the relevant school districts. The mid-20th century era of liberal predominance at the Supreme Court closed without reaching those destinations, and many liberals went through a painful process of adjustment in the decades thereafter, realizing only slowly that the courts were no longer on their side.
The presidential election is still months away, and Clinton’s election is by no means a certainty. But if it happens, a long period in constitutional development will have come to a close. The conservative victories of the past several decades will not be for naught: A great deal of law has changed, and it will not all be unraveled. But the direction will be different. Rather than asking whether abortion and affirmative action will continue, courts will ask about this or that aspect of abortion or affirmative action on the broad understanding that the practice in some form is secure.
For more:The Right-Wing Supreme Court That Wasn’t.