“The Supreme Court follows the election returns,” or so opined satirist Finley Peter Dunne in 1901 in language purged of its original Irish brogue (see Chapter 3 of Dunne’s Mr. Dooley book). Back then, the court was headed by Melville Weston Fuller, its eighth chief justice, under whose enlightened stewardship it handed down Plessy v. Ferguson, the infamous decision that upheld the constitutionality of state laws requiring people of different races to use “separate but equal” public facilities.
What Dunne meant, of course, was that the
court was a partisan political institution, often less dedicated to
following constitutional values than currying favor with the nation’s
elites, and that it was also capable of responding to shifts in public
opinion. So it was at the turn of the last century and so it is today.
But exactly how the court reads and reacts
to elections is by no means a given. Thus we must ask whether the
court’s current ultraconservative Republican majority will interpret
Barack Obama’s re-election as a call for reflection and moderation or as
a signal to lurch even harder to the right. At least one member of the
Republican majority—Justice Samuel Alito—has answered that he sees no
reason to do anything but double down on past practices.