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Making the Supreme Court Safe for Democracy

Beyond packing schemes, we need to diminish the high court’s power.

The death of Supreme Court justice Ruth Bader Ginsburg has sent the already fraught politics of Supreme Court confirmation into crisis. But the panic that followed the news of Ginsburg’s death, given the heightened stakes of the 2020 election, has served one useful purpose: It’s made it clearer than ever that Supreme Court reform is an urgent democratic cause, one that requires rethinking the federal judiciary from the ground up.

The mandate for this reconsideration could not be more glaring. President Donald Trump has nominated ardent conservative Amy Coney Barrett to fill Ginsburg’s seat, and Senate Majority Leader Mitch McConnell is seizing the opportunity to consolidate right-wing control of the institution for generations. Democrats have decried Republicans’ decision to fast-track Barrett’s confirmation prior to the election—an act of brazen hypocrisy, given Republicans’ refusal to consider Merrick Garland’s nomination in 2016 on the grounds that an election-year confirmation would deprive the American people of the opportunity to exercise their democratic will. Still, McConnell’s shameless power grab has inadvertently triggered a once-in-a-century opportunity to truly confront and repair the damage that the high court’s incredible power has done to the workings of American politics. As with other structural challenges, however, success can only be achieved if Democrats play their hand more astutely than their opponents do.

Ginsburg became iconic for her extraordinary feminist accomplishments as advocate and judge. Yet the timing of her death was catastrophic, casting a pall on her legacy. In 2013, with the Democrats still holding both the presidency and the Senate, Ginsburg made a bet on her own longevity. It is now left to the rest of us to pay the Republicans their winnings. But rather than criticize Ginsburg for her decision, it is far more productive to ask how best to reimagine the Supreme Court in her honor. No one should be surprised, after all, that Ginsburg held fast to power that no judge in a democracy should have.

Thomas Jefferson pointedly observed in the first decade of the nineteenth century that treating the Supreme Court as “the citadel of the law” would encourage those losing power by democratic means to “retreat into the judiciary as into a stronghold.” Jefferson all but sketched McConnell’s quest for judicial power centuries in advance. McConnell is banking on the right’s demonstrated ability to maintain political control from the Supreme Court’s commanding heights—to the point that he’s prepared to lose his own Senate majority to consolidate right-wing judicial rule.

Democrats can either play into McConnell’s strategy or make a better move. Reviving their best traditions, the left should not aim merely to reverse McCon­nell’s successes. That course of action will serve chiefly to lock in a broken status quo—preserving the standing of Supreme Court justices as royalty but vying to confirm left-leaning monarchs rather than right-wing ones. Instead, Democrats should work to undo the long-running transformation of our democracy into glorified judicial politics—a conversion Democrats helped to bring about over the course of the past century. This may mean storming and occupying the citadel of law. But it would end the high court game of thrones in order to reimagine the core mission of the judiciary in American democracy.

Every American law student learns that the Supreme Court’s authority to invalidate legislation—the storied power of “judicial review”—was established in the landmark decision Marbury v. Madison (1803). But the scope of judicial review wasn’t settled law from the start: In fact, before liberals in the middle of the twentieth century embraced the court’s broad power to invalidate legislation, there had been plenty of debate about the propriety of rendering Congress’s laws null and void.

The debate was theoretical for a long while, because the court used its power only sparingly. But in 1857, shortly before the Civil War, Dred Scott v. Sandford denied Black Americans the rights of federal citizenship. The decision prompted Abraham Lincoln to disregard and marginalize the court. Still, Congress didn’t follow Lincoln’s lead; the legislative branch failed to curtail the high court’s authority.

Until the late nineteenth century, Marbury was not widely cited. That changed when laissez-faire conservatives turned to the court to check states’ ability to regulate employment contracts for the good of industrial workers, and sought allied authority to preempt the powers of the federal government—especially to tax income. As free-market evangelists were extending their rule over the American political economy, the judicial control of democratic choice took on a new national significance. At the same time, Marbury became enshrined as a “great case” in our history, making it seem as though counter-majoritarian judicial power was a necessary element of American constitutional rule.

Our political system reoriented itself in compliance with this new consensus on high court sovereignty. Granting constitutional writ to the laissez-faire vision of freedom of contract meant not only that employers enjoyed a new uncontested power; the Supreme Court itself did as well. The court’s authoritative interpretation of the Constitution may have always been politics by other means, but thanks to the newly entrenched power of judicial review, the court itself was now at the center of national politics. Then as now, it was not obvious how those who disliked the emergent juristocracy could or should respond.

Harvard Law School professor James Bradley Thayer offered a brilliant democratic solution to this dilemma, one that defined the first half of the twentieth century. When the Supreme Court began perverting the Fourteenth Amendment, passed after the Civil War to protect African Americans from local majorities, Thayer surmised that a frontal attack on judicial authority made as little strategic sense as telling Americans that apple pie was not really their birthright. Instead, fresh back from a trip to England where he witnessed the birth of popular democracy, Thayer hoped to see Americans reach the same set of outcomes not by getting rid of the Supreme Court, but by reinterpreting its role in the American constitutional system. Thayer proposed that judges who were never elected could invalidate only laws that were genuinely beyond the pale.

“It is a common opinion that courts should declare laws unconstitutional when they think them so,” he wrote in The Nation in 1884. But the “judicial function,” he explained, was instead to “determin[e] whether the Legislature has transgressed the limits of reasonable interpretation.” The question, in other words, wasn’t whether the Supreme Court liked a given law, or even whether it read the Constitution to forbid it, but whether the legislature could conceivably reach a different view. Without rejecting what Marbury had come to mean, Thayer attempted to make judicial power safe for democratic self-rule.

Thayer remains less well known today than those he influenced—storied Supreme Court justices such as Louis Brandeis, Felix Frankfurter, and Oliver Wendell Holmes Jr. who attempted to put his proposal into practice. “I agree heartily with it,” Holmes remarked of Thayer’s plan. But there was an essential limitation few saw at the start. Thayer’s approach required judges to engage in self-restraint, by deciding when or even whether to adhere to the default position of letting the legislature rule.

In the decades that followed, both Progressives and socialists devised a wide range of plans for Supreme Court reform—but the mainstream of liberal legal opinion sought to realize Thayer’s noble dream. When the Supreme Court struck down Franklin Roosevelt’s earliest New Deal legislation, the National Industrial Recovery Act, in its 1935 A.L.A. Schechter Poultry v. United States ruling, Roosevelt faced a momentous dilemma of principle and strategy. Other important New Deal statutes, especially the National Labor Relations Act, which allowed collective bargaining for unions, and the Social Security Act, appeared to be in serious jeopardy after the NIRA was invalidated. As Roosevelt surveyed his options, he came up with a plan to add a new justice to the Supreme Court for each that was over 70, thereby fundamentally changing the institution’s balance of power, and securing a likely majority in support of New Deal legislation.

Members of the Senate Judiciary Committee discuss their opinions on President Roosevelt’s request to increase the membership of the Supreme Court to 15 members, February 8th, 1937.
Harris & Ewing/Library of Congress

Enemies of Roosevelt’s plan dubbed it “court-packing.” They challenged its constitutionality, even though the number of justices had varied over the nineteenth century. Ultimately the Senate voted down FDR’s plan in the summer of 1937, after its most important supporter, Arkansas Senator Joseph Robinson, suffered a fatal heart attack. Most historians agree, however, that the specter of an expanded court was enough to persuade the existing justices to adopt a more accommodating stance on the New Deal. And more important, the court ultimately embraced Thayer’s conception of how courts should reason through disputed legislation in a new set of freedom of contract cases. “Regulation which is reasonable in relation to its subject and is adopted in the interests of the community” passes constitutional muster, the court held in the landmark 1937 case of West Coast Hotel Co. v. Parrish.

The crisis passed, and the New Deal survived—but only because a majority of the Supreme Court agreed to intervene rarely in its progress. Over the ensuing half-century, however, this regimen was continually tested and broke down easily. The limits of Thayer’s dream of self-restraint became all too clear, not because it was spurned but because it was realized. Judges could not stop themselves from making policy in the name of interpreting the Constitution, and they had understandable reasons to do so.

In the face of totalitarianism during World War II, the justices—within five short years of 1937’s de facto accord on New Deal regulation—moved to make exceptions to the principle of restraint when state tyranny threatened. In its most dramatic reversal, the Supreme Court pivoted in 1943 to overturn an 8–1 decision three years earlier that found the political process offered adequate protection to Jehovah’s Witnesses asserting rights of free religious exercise. Now, the justices said, it was up to them to protect those rights. What was at stake was whether to make exceptions to the hard-won promise of deference, returning the justices to the realm of policymaking they had supposedly renounced. Frankfurter, loyal to his hero Thayer to the end, warned the court that it was repeating the very mistake it had promised never to make again.

Part of the reason Frankfurter lost the argument was that, after World War II, liberals faced the temptation to use Supreme Court power to advance the cause of racial justice beyond a point where Democrats could convince a fickle people to go. In the 1930s, Roosevelt struck unpalatable compromises with Democrats in the South who were a lynchpin of his electoral coalition. After World War II, with America facing the Soviet Union’s denunciation of its racism, national elites opted to risk everything to enable the court to do their hardest work for them. The stimulus the Supreme Court gave to the civil rights movement redeemed it from its own racist past, but also provided a fairly direct path to imposing controversial policy.

It was an understandable move. With moderate California Republican Earl Warren in the chief justice’s seat, the Supreme Court helped break the Democrats’ intraparty deadlock on race with Brown v. Board of Education (1954). Widely decried by racist Southerners, Brown also drew doubting commentary from senior liberal judges like Learned Hand, together with liberal scholars hewing to the Thayer tradition. The decision helped consolidate the idea that judges must defect from Thayer’s principle of judicial restraint for a good cause.

Brown went on to become a canonical decision in modern liberal jurisprudence, allowing liberals to join in on the eager deference to Marbury that conservatives had endorsed decades earlier. Warren’s Supreme Court continued to consolidate the new liberal position in a series of landmark rulings on criminal justice and anti-discrimination law. In the 1970s, Ginsburg, Pauli Murray, and other activists invoked the same principles of federally guaranteed equal protection that Brown had consecrated to advance the cause of gender equality.

Despite these high-profile successes, the truth was that, even at the zenith of liberal power over the courts, congressional action actually led to a greater expansion of rights protection in American society. (Some historians maintain that Brown had done its most important work by helping to enable and direct these new rights-protecting enactments.) The federal legislature was the motivating force behind what progress ensued in the realm of school desegregation, and played an indispensable role in the removal of obstructions to voting. But the experience of judicial power as a successful political shortcut had begun to exert enormous influence over the liberal mind, since it proved easier to organize and simpler to maintain than transient popular support for liberal policies.

In retrospect, there were two serious problems with liberal reliance on judicial fiat. One was that the ascendancy of liberal inclusion was class-free and shied away from the structural foundations of inequality. This meant that court rulings could invoke formal equality in majestic language but never ensure the basis for full citizenship in America’s political economy. As a result, the liberal reliance on judicial power produced, over time, a form of liberalism benefiting the well-off, not the truly vulnerable. As the public schools were resegregated, liberals could not or would not forge a popular movement for a transracial majority of the kind Roosevelt enjoyed among the white working class. It was no accident that the cult of Ginsburg became most fervent in an era of a class-free, “lean-in” feminism.

Second, the reign of the liberal juristocracy was astonishingly short-lived. Richard Nixon’s presidency slowly built up conservative power on the court, starting with Warren’s successor as chief justice, Warren Burger, in 1969. Nixon made a series of transformative appointments—such as Lewis Powell and William Rehnquist—in the early 1970s that effectively stopped the liberal judicial project in its tracks. Republicans made 10 appointments to the Supreme Court between 1969 and 1992, and four since (presuming Barrett is confirmed)—that’s compared to the Democrats’ four appointments between 1969 and today. Where Democrats had little to show for their brief stint in the citadel, once Republicans took over, the results were catastrophic.

It wasn’t just that racial justice went backward. The very rights that liberals had set out to defend by unleashing judicial power were often those conservatives deliberately reappropriated and harnessed in pursuit of devastating policy ends. Free speech was converted into a set of protections for the powerful and wealthy, including within elections, as in Citizens United v. Federal Election Commission (2010), or in labor disputes, as in Janus v. American Federation of State, County, and Municipal Employees (2018). With liberal connivance, indeed, the Supreme Court has in our time become more business-friendly than at any other point in nearly a century.

And in interpreting another clause of the First Amendment, the Roberts court has converted the right to free exercise of religion from a principle of toleration in a secular state to one that exempts believers and their institutions from anti-discrimination law and allows governments to fund them. The Equal Protection clause was audaciously deployed as well. After proving instrumental to the defeat of formal racial apartheid and gender discrimination, it has come increasingly to shield white people from affirmative action and desegregation plans.

In exchange for their limited successes, liberals allowed conservatives to parody Thayer’s positions, inviting the rampant charge of “judicial activism” from the right. “A lesson that some will take from today’s decision,” reactionary Supreme Court Justice Samuel Alito surmised in one case, “is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means.” Of course, conservatives such as Alito have turned to judicial power in service of their own preferred political ends; but it’s no less true that liberals had embraced the same brand of activism, and for much paltrier gains.

This history raises two fundamental questions for the left going forward. If Thayer’s noble dream has turned into a nightmare, is there an alternative to it? And when and how could the forces of the left accept that constitutional law, even when pronounced by a powerful Supreme Court, is no alternative to majoritarian political success? Ginsburg’s death has raised both questions with existential urgency for American democracy.

Faced with McConnell’s flagrant actions, many on the left end of the political spectrum feel wholly certain that either Gorsuch’s or Barrett’s seat is rightly theirs—either, they reason, the Senate is justified in confirming a justice as an election nears or it isn’t. It will be tempting for Democrats to respond to a Barrett confirmation by creating and filling two additional seats on the court: one to cancel Gorsuch’s or Barrett’s vote and another to re-create Garland’s seat, or whatever nominee Biden might have selected if he’d had the opportunity.

Alternatively, Democrats could be much more aggressive. If the real takeaway from McConnell’s behavior is that there simply are no norms constraining judicial appointments, and instead that courts are a pure instrument of power politics, Democrats could add four or more seats to the court—however many are necessary to ensure a stable liberal majority long into the future. (In The Atlantic, Take Back the Court director Aaron Belkin calls for six; in The Nation, Elie Mystal proposes adding a whopping 10 new Supreme Court justices.) Such an approach would have the advantage of clearing judicial obstructions before any impending Democratic legislation. More still, it would promise to entrench left-liberal values for years if not decades to come—much as conservatives have managed to do on the high court for nearly a half-century.

Adding even only two seats would—without additional reform—set off a partisan spiral, with Republicans adding two (or more) seats the next time they retake the White House and the Senate, and so on.

Worse still, adding two seats would do little more than return us to an unacceptable baseline. Each June, Democrats would wait anxiously to see if John Roberts or Neil Gorsuch will side with them on this or that critical issue. Apparent “victories” such as NFIB v. Sebelius (which saved the individual mandate of the Affordable Care Act while invalidating its Medicaid expansion) or June Medical v. Russo (which preserved a pared-down version of the federal right to reproductive choice) would continue to be “pyrrhic,” as law professor Leah Litman has remarked. In this brand of decision, liberal justices have bargained away crucial protections in the name of avoiding catastrophe. The inevitable review of complex legislation like a renewed Voting Rights Act or a Green New Deal would surely present just such a Hobson’s choice, as the censors at the Supreme Court—even one with two additional liberals—cut ambitious legislation down to suit the center right.

The more aggressive response might be called the “Polish” option, because it is reminiscent of the gargantuan expansion of that country’s Supreme Court by the Law and Justice Party. Adding four or more seats to the court would establish a stable Democratic judicial majority indefinitely. In the short term, social democratic legislation would be safe from invalidation, and civil liberties would, in all likelihood, be enforced more aggressively. But within a few years, Republicans would predictably retaliate by doing the same, adding sufficiently many justices (and judges) to regain effective control. And so the spiral would go.

Some of court-packing’s more emphatic proponents embrace or at least tolerate this consequence. Most, however, find it disturbing, reasoning at least in part that the court, and courts generally, perform some important nonlegislative function that they wish to shelter from political gamesmanship. Meanwhile, for those who regard the court purely as an unelected “super-legislature,” the question becomes one of both principle and strategy: Why continue to channel political disputes into the judicial arena, where policy arguments must be distorted into interpretive legal ones? And why continue to leave ultimate political decisions to legislators in robes who remain completely unaccountable to the public?

Regardless of which approach to court-packing Democrats might adopt, judicial appointments, and the Supreme Court generally, would continue to be a site of existential political confrontation. The reason is straightforward: No matter the number of justices, the court would remain empowered to decide many of our society’s most contentious and most consequential disputes. The stakes of judicial appointments would thus remain extraordinary, leaving actors within the political arena no choice but to battle aggressively for judicial control.

The only hope of bringing stability to the situation, then, is to find some way of lowering the stakes. Adding or proposing to add seats could have this effect in the short term; one could imagine the Roberts court, consisting of however many justices, responding to this era of institutional crises by entering a period of dormancy. As it has at points in the past, the court may take a more deferential stance toward the political branches in the hopes of restoring its reputation as something other than an ideological or partisan branch.

And yet, we’ve been here before. The earlier failure of Thayer’s dream shows that even under a best-case scenario, any period of judicial self-regulation would unravel sooner or later. As the memory—or threat—of court-packing faded, the justices would again be tempted to pursue their own policy interests—or, to put things more charitably, to advance their own senses of justice. Beyond the justices themselves, proponents of various causes, both noble and ignoble, would continue to pursue legal strategies aimed at policy outcomes they were unable to secure through majoritarian politics. Allowing a forum for policymaking separate from the political branches—even if restricted to the language of impartial legal reason—inevitably draws political actors there to struggle within.

This dynamic would be made even worse by strong incentives discouraging other branches of government from open conflict over difficult issues. For much of its modern run, the high court has functioned as an arbiter for disputes that don’t admit to ready political resolution, since it can (on however selective a basis) grant institutional cover to political leaders who desperately need it. (This temptation would remain strong so long as the nation continues to be both polarized and closely divided, with swing legislators in each party eager to avoid difficult votes.) Amid this combination of temptation and pressure, Thayerian self-restraint is bound to give way.

Remember, too, that this is the optimistic scenario. An all-too-plausible pessimistic one involves the justices disregarding any inclination to “depoliticize” the court, with the spiral of partisan retribution continuing apace.

The broader aim of advancing substantive reform within the country at large makes a much more pressing case for not merely capturing, but marginalizing, the court. The nation is now beset with multiple, intersecting economic and environmental crises, and the overwhelming priority for incoming Democrats is to muster a historically unprecedented policy response. The coronavirus pandemic and climate horrors have laid bare the pervasive and deep failings of the American welfare state. All the while, huge numbers of Americans, especially the young, are ravaged by economic insecurity, whether because of crushing student or medical debt, the lack of affordable housing, or punishing workplace precarity.

The only plausible way of addressing these crises is through massive and far-reaching legislation, beyond the scale of anything we have ever seen—even under FDR. Such action is hard to imagine, given that, in recent decades, America’s legislature has grown ever more dysfunctional. And yet with Democrats poised to reclaim the political branches and at least some indication that Democratic officials understand the enormous scale of the challenges we face, this may be our last, best opportunity to start down the road to a more egalitarian and ecologically sustainable future.

Under our constitutional system, Democrats face additional hurdles. Most obviously, the Senate’s disproportionate representation of citizens in less populous states makes the politics of anything like a Green New Deal frustratingly difficult. Democrats could take steps to improve the situation—adding the District of Columbia and Puerto Rico as states, for example. But even under the best of circumstances, enacting such legislation would require mass political mobilization on a scale without modern precedent.

The justices of the U.S. Supreme Court gather for a group portrait in Washington, November 30, 2018.
Doug Mills/The New York Times/​Redux

Given this almost impossible task, the question becomes: Why leave open that a democratically unaccountable Supreme Court might invalidate such hard-won democratic political victories, either all or in part? When it comes to creating enormous governmental programs, the court can only hurt. Courts generally are unwilling to instruct governments to make significant expenditures. Partly for that reason, it is unimaginable that even a liberal Supreme Court would “discover” in the Constitution a positive right to, say, real environmental justice. Instead, all the court can do, constitutionally speaking, is get out of the way. Here again, we see the wisdom of the old socialists and Progressives at the turn of the twentieth century: far better to disempower the court than to hope that it rules in your favor.

If courts are an impediment to widespread economic security or a livable future, one might object that they are nonetheless a critical protector of women and minorities. But we must also acknowledge the limits of court-administered breakthroughs. For all the gains in formal equality we have witnessed, real equality remains a distant dream. As Keeanga-Yamahtta Taylor has written, “the pace at which African-Americans are dying” from Covid-19 “has transformed this public-health crisis into an object lesson in racial and class inequality.” Likewise, critics of Ginsburg’s class-free feminism contend that we will never arrive at true equality of the sexes so long as poor women bear the brunt of the patriarchy’s abuses.

The only way to achieve anything approaching real equality, then, is through significant reallocation of resources by means of ambitious legislation. As Michelle Alexander concludes, “We cannot achieve racial justice and create a secure and thriving democracy without also transforming our economic systems.” And this is another fundamental realm of justice in which the Supreme Court can only help by getting out of the way.

With Barrett’s confirmation, Democratic court-packing may become both inevitable and justified. But the tactic of adding and filling seats can only yield meaningful reform if the Supreme Court’s authority is simultaneously curtailed. To disempower the court, Democrats in Congress will have various tools: limiting the jurisdiction of the federal courts (known as “jurisdiction stripping”), erecting a parallel judiciary inside the executive branch to enforce new laws, or requiring supermajority consensus among the justices to void federal legislation. Without such a thoroughgoing agenda of legal reform, Democrats would condemn themselves to a perpetual cycle of battling over judicial confirmations and—worse—confronting an array of counter-majoritarian threats to any ambitious policies they organize to pursue.

Thayer understood that in order to have a democratically accountable and legitimate judicial system, we need not return to Jefferson, wholly rejecting a Supreme Court vested with the power of judicial review. But that hardly means reconciling ourselves to a supra-democratic court exercising its current, expansive legislative veto. Taking into account the full sweep of the institution’s modern history—including Thayer’s failed dream—we must set about reforming the Supreme Court by reducing its authority, not praying that its justices will somehow refrain from using it. No other course of action is equal to the urgent crises and the democratic imperative of our present.