As the Supreme Court prepares to kick off its next, sure-to-be-eventful term, the high court faces ballooning public skepticism about its evident appetite to “take” what President Ronald Reagan’s solicitor general, Charles Fried, labeled, “a constitutional wrecking ball to generations of Supreme Court doctrine.” Three major public opinion polls have shown sharp declines in the court’s favorability since Justice Samuel Alito’s draft decision in Dobbs v. Jackson Women’s Health Organization first leaked. The most recent of these, the Marquette Law School Supreme Court poll, found that a bare majority of Americans favor expanding the court. But by itself, public opinion is not enough to repair the damage done or avoid further damage. The onus is on liberal political leaders to take up the challenge of reining in the Supreme Court’s reactionary bloc—or forfeit liberals’ agenda for the twenty-first century, as well as landmark accomplishments of the twentieth century.
Blowback to the post-Trump majority’s provocations, on and off the court, has spooked even the right-wing justices themselves, enough to propound public defenses of their bona fides as stewards of an independent judiciary. By thus taking their cause to the public—Justices Amy Barrett, Samuel Alito, and especially Chief Justice John Roberts, with his tone-deaf September 9 stab at delegitimizing attacks on his court’s legitimacy—have themselves politicized the battle. They have essentially acknowledged that their drive for aggrandized power and century-canceling reactionary policy change has become a major political issue, and they have chosen to fight their cause as such.
The court’s liberal minority has responded in kind to the right-wing justices’ political challenge, with Justice Elena Kagan’s ripostes to Roberts’s protest. In three widely reported appearances in one week, she blamed him and his ideological comrades for endangering the court’s stature, detailing their serial breaches of constitutional and societal norms. On September 12, she admonished, “Judges create legitimacy problems for themselves when they don’t act like courts.” Two days later, she snarked, “People have a right to say, people with one set of policy views are replacing another.” Five days later, she sharpened her blade further: “The court shouldn’t be wandering around just inserting itself into every hot button issue in America, and it especially, you know, shouldn’t be doing that in a way that reflects one ideology or one … set of political views over another.”
But Kagan here is not merely calling out the right-wing justices. She is also calling on liberal political leaders to give her and her fellow liberal justices the political support needed to stem the right’s reactionary tide. But this ask—to make a major political issue of the Supreme Court and constitutional interpretation—requires liberal politicians to rise to a challenge that they have perennially dodged.
For decades, with few exceptions—notably, Senators Sheldon Whitehouse, Dick Durbin, Chris Murphy, and Elizabeth Warren; their former colleague Al Franken; and Representatives Hank Johnson, Jerrold Nadler, and Zoe Lofgren—liberal political leaders have stood by, virtually mute, as the judicial right has powered forward. This inattention persisted even after insurgent 2016 Republican presidential nominee Donald Trump headlined his pledge to shift the federal judiciary radically rightward and then, as president, made that commitment an unprecedented top priority.
Nonetheless, the numerous contenders for the 2020 Democratic presidential nomination, in their 13 debates stretching over 10 months, rarely mentioned the Supreme Court or federal judicial appointments. Joe Biden’s general election campaign did target Republican states’ then-pending lawsuit to kill the Affordable Care Act. But the campaign’s spin was to tie the case to Trump, to cast his reelection as a health care policy threat, not to spotlight a broad, radical, and constitutionally baseless threat to essential pocketbook, health, and environmental safeguards. In the first Trump-Biden debate, even though moderator Chris Wallace specified that one of the 15-minute segments was to be about the Supreme Court, Biden immediately turned that question into a stick for bashing Trump on the ACA.
In fairness, liberal constituencies and voters likewise have long seemed indifferent to the judicial right’s existential threat to their core interests, giving their political leaders little incentive to take up the cause. But that public passivity appears to be changing. With the new 6–3 majority’s penchant for shredding long-established doctrine, especially its overrule of Roe v. Wade, liberal—as well as nonaligned, independent, and even some traditional conservative—leaders, constituencies, and voters have prioritized anger at the radical right turn taken by the post-Trump Supreme Court.
No comparable opportunity for mobilizing political pushback is likely to come again soon. And the opportunity at hand may be all too brief. Just as early 2016 liberal ire over Senate Republicans’ stiffing Merrick Garland’s Supreme Court nomination shrank precipitously by that year’s end, so too could post-Dobbs mobilization fade into embittered resignation, if it’s not channeled into timely and credible remedial strategies.
To seize this day, liberal politicians can’t continue making do with sporadic hand-wringing outbursts and ham-handed, unsustainable threats of political retribution. Nor can they squander time and political capital on magic-bullet solutions—such as Supreme Court expansion and term limits—that are either unenactable or, if enacted, would not reliably benefit liberal interests, or both. In particular, such long-term, heavy-lift institutional makeovers are, at best, unlikely to answer Justice Kagan’s call to rein in the current rogue right-wing majority.
To answer that call, liberal leaders must size up the sources of political strength that undergird the Supreme Court majority’s audacious demolition campaign—defenses that are formidable but by no means invulnerable.
The judicial right’s first defense is close to impregnable: Its 6–3 majority is not going away anytime soon. That is an asset that no plausible institutional makeover measure can eliminate or degrade—barring an unexpected court vacancy or Democratic run-the-table election sweeps in 2022 and 2024, prospects that currently appear beyond reach.
The second political bulwark of the rightist justices’ pursuit of their agenda is what catapulted them to their present seats of power in the first place. Their agenda, however “law-free” (to invoke another Kagan zinger) and unpopular, is an avid top priority for most Republican political leaders, voters, and donors. While this asset cannot be dislodged, it can be weakened, as illuminated by 2022 Republican election candidates’ skittishness about the abortion issue post-Dobbs. Furthermore, if Democrats maintain control of the federal political branches, the political value of Republicans’ fervor will drop, perhaps precipitously.
More vulnerable—potentially—is the third political prop for the right-wing justices’ agenda: public ignorance of large parts of that agenda. Many of the constituencies and individuals currently threatened by the court’s right-wing ideological project are not aware of the damage that project will inflict (or has already inflicted) on their core needs and interests. Liberal political leaders, and other leaders, can and should remedy that. They can invest far more resources in this effort and spend those resources far more effectively, to educate affected constituencies and the media and public generally about the damage portended and wrought by the judicial right’s agenda, its shredding of established law and constraints on judicial power, and blatant solicitude for partisan and material interests of Republican politicians, allies, and donors.
The justices’ fourth political asset is, potentially, their most vulnerable. They and their handiwork benefit from public respect for the judiciary, especially the Supreme Court, as the nation’s independent adjudicator and law interpreter. That respect is a core postulate of most Americans’ vision of how their government should function and of their expectation that justices try in good faith to meet that standard. But now that respect could be waning, perhaps sufficiently to knock the court from the pedestal on which it has rested for most of the nation’s history. As mentioned above and widely noted elsewhere, the perception that the right-wing justices’ agenda and their stewardship of the court are driven by politics rather than law is growing among the public and the media.
Traditionally, liberal politicians have been reticent about leveling sharp-edged criticism at the court. In part, this habit could be attributable to the last six decades of the twentieth century, when they viewed the court as an ally. Even now, many would find resonant Chief Justice Roberts’s September 9 pitch to delegitimate his critics:
“You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide [for decisions].... Simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”
Typically crisp, Roberts’s riff is nevertheless starkly at odds with America’s history of constitutional law and politics, starting with the founding era’s vicious Federalist-Republican warfare over the courts and constitutional interpretation; in 1804, President George Washington appointee Justice Salmon Chase was impeached by the Republican-controlled House and avoided Senate conviction by one vote. Subsequently, this nation’s uniquely powerful high court has experienced being told what the law is by public opinion and the political branches whenever the court threatened or wrought major societal impacts, broached boundaries of established interpretation, or aligned with a particular political ideology or party. Examples roll off the tongue: Dred Scott v. Sandford (1857), which held that “the negro has no rights that a white man is bound to respect”; Plessy v. Ferguson (1896) and other decisions that emasculated the Reconstruction amendments’ guarantees of racial equality and national citizenship; Lochner v. New York (1905), which transmuted the Fourteenth Amendment into a judicial veto over federal and state laws protecting workers and other liberal economic regulations; Brown v. Board of Education (1954), which invalidated state-sponsored racial segregation; Miranda v. Arizona (1966), which required law enforcement personnel to administer a “Miranda warning” before interrogating arrestees; Roe v. Wade itself (1973); and pre–Trump court twenty-first-century blockbusters too numerous and recent to be necessary to name.
Obviously, controversies as consequential as those above, and those the current majority is igniting—are political, inherently, in a democratic republic. Chief Justice Roberts is correct that the court’s members should make up their own minds as to what the law is. But just as certainly, they should not close their ears to public opinion; affected interests and communities; and the views, role, and expertise of the political branches, and, for that matter, states. Indeed, taking such views into account is essential for nine, or as few as five unelected, life-tenured lawyers who have final say over the explosive issues the court has over the past several decades accreted the power to decide.
Realistically, the most useful frame for how constitutional matters of great political significance are resolved in this country is not Roberts’s picture of a hermetically sealed band of black-robed brothers but Yale Law professor Akhil Amar’s concept of a “constitutional conversation,” in which engaged publics and political leadership debate issues on which the Supreme Court usually has the last, but not the only, word and frequently not the most decisive word. To regain their footing in the current war over the courts and the Constitution, liberal political leaders must embrace that “conversation,” play their role forcefully and cannily, and get results.