The next Supreme Court pick matters less than you think

The Supreme Court under Chief Justices Warren E. Burger, William H. Rehnquist and John G. Roberts Jr. has overruled relatively few liberal constitutional precedents. Despite strong invitations to do so, the court did not reverse Roe v. Wade (protecting the right to choose an abortion) or Miranda v. Arizona (requiring warnings and legal assistance in interrogations). It has not ended affirmative action or overturned decisions banning the public display of religious symbols. Even if Garland or some other Democratic nominee is confirmed, therefore, major changes in existing constitutional doctrine are unlikely. The force of precedent imposes significant limits on the court’s ability to change direction, even when its personnel change.

Major transformations of constitutional law do occur, but they require much more than a new justice. They generally follow decades of persistent advocacy in a variety of forums, primarily outside the Supreme Court. The court is much more likely to recognize constitutional change than to generate it. And it tends to do so slowly, only after the ground of public opinion and state law has already shifted. Constitutional law changes incrementally, from the ground up, not suddenly, from the top down.