Supreme Court justice Ruth Bader Ginsburg died on Friday, causing a lot of liberal consternation about the future of the Supreme Court. Before Ginsburg’s death, there was a five-to-four conservative majority on the court, but chief justice John Roberts sometimes crossed the aisle to vote with liberal members on certain cases. If Ginsburg is replaced by Donald Trump and the Republican Senate, the conservatives will have a six-to-three majority, which will make it harder than it already is for liberals to win contentious cases before the court.
The problem this creates for liberal members is clear enough: they will no longer have much power over the decisions of the Supreme Court. But the liberal solution to this problem remains a bit confusing.
The Supreme Court performs a variety of functions, but the main one that people talk about is the power of constitutional review. The way this power works is that the Supreme Court has the ability to declare laws as either allowed by the Constitution or disallowed by the Constitution.
This is an extraordinary power that can be used to accomplish anything, whether good, bad, or indifferent. You can use the power to say school segregation laws are disallowed (Brown, 1954) or to say that school desegregation laws are disallowed (Parents Involved, 2007). You can use it to say laws restricting voting rights are disallowed (Harper, 1966) or to say that the Voting Rights Act is disallowed (Shelby County, 2013). You can use it to say laws restricting contraception are disallowed (Griswold, 1965) or to say that laws requiring insurance to cover contraception are disallowed (Burwell, 2014).
Things that were once allowed by the Supreme Court can later be disallowed. So at one point, you can say that campaign spending regulations are allowed (McConnell, 2003), and then you can say that they are disallowed (Citizens United, 2010). You can say that fair share fees for public-sector unions are allowed (Abood, 1977) and then say they are disallowed (Janus, 2018).
Naturally, the sorting of laws into the disallowed or allowed buckets depends almost entirely on political ideology and therefore on the political composition of the court. If liberals are in control, they place socially conservative laws into the disallowed bucket and progressive economic laws in the allowed bucket. If conservatives are in control — as they are currently and look like they will continue to be for a long time — they place progressive economic laws in the disallowed bucket and socially conservative laws in the allowed bucket.
What’s weird about the liberal response to the growing conservative majority on the court is that it seems to, at times, strongly endorse the idea that the court should be in the business of striking down laws enacted by elected officials but then also, at other times, view this sort of activity as deeply anti-democratic and anti-majoritarian, at least when conservatives do it. It looks like, for liberals, what’s good for the goose is not good for the gander. Judicial supremacy for me but not for thee.
The main solution to the growing conservative court majority that you see in the discourse — having liberals expand the size of the court to ensure that liberals make up a majority of its members — perilously navigates these contradictions by implicitly affirming the idea that the Supreme Court should have the power to disallow laws so long as conservatives are not allowed to wield that power. Of course, this solution does not actually prevent conservatives from also packing the court, and so it does not deliver on its latter promise. But there is a feeling that it does deliver on it, and that’s enough to make the idea attractive.
If you actually look at the court-packing proposal clearly, what it really amounts to is the idea that the Supreme Court majority should always reflect the party that simultaneously controls the presidency and the senate. Put more explicitly, this proposal says that the Supreme Court’s sorting of laws into allowed or disallowed buckets should always accord with the views of the party that controls the presidency and the senate. This is not a formal abolition of the Supreme Court’s power of constitutional review, but it is a near-complete effective abolition of that power.
I don’t have a problem, necessarily, with abolishing constitutional review, but court-packing is a strange and very complicated way to do it. If you want to get rid of constitutional review, that can be done unilaterally by the president. All the president has to do is assert that Supreme Court rulings about constitutionality are merely advisory and non-binding, that Marbury (1803) was wrongly decided, and that the constitutional document says absolutely nothing about the Supreme Court having this power. You don’t need a constitutional amendment. You don’t need to pass a law. And you don’t need to appoint any judges. This is a completely reasonable position that also reflects the kind of power top courts have in other countries.
When you present this idea to people, they more often than not recoil in horror, even if they support court-packing that amounts to the same thing. Liberals can somehow get their head around the idea that the court is an empty vessel that can be used to allow or disallow anything (hence their horror at conservative control over it), but still, at the end of the day, they cannot shake the bit of ideology that makes them believe the court’s ability to strike down laws will be good for liberals and the groups and rights they care about. Until this incoherence is resolved, it is impossible to really construct a clear line on what the Supreme Court should look like and what power it should have.