When Stephen Breyer announced his retirement from the Supreme Court last week, liberals rejoiced that a Democratic president would appoint his successor. You’d think, observing this joyful outburst, that some important turning point in the court’s political composition had occurred. Yet it was more a sign of how defeatist liberals have become on the subject: a Supreme Court that already has a six-three conservative majority will now retain its six-three conservative majority.
That’s pathetic. There’s no reason for anyone to accept that six conservatives should be empowered to block social progress for years to come. In fact, no panel of unelected lawyers should have that power.
Stop Respecting Traditions
In theory, Joe Biden could appoint more justices and the Senate could confirm them until the Court had a twelve-six or eighteen-six liberal majority. Nowhere does the Constitution require a nine-member court, so that number could be changed by a simple act of Congress. In 1937, Franklin Roosevelt unsuccessfully proposed a bill that would have done exactly that, and, as hard as it is to remember now, numerous progressive commentators touted the idea after Donald Trump changed the balance of the court from five-four to six-three in 2020.
We all know, though, that this won’t happen — and not just because of Joe Manchin and Kyrsten Sinema. Many congressional Democrats would balk at such a dramatic change to an institution that holds a semisacred status in the minds of American liberals. In the past, Democrats have treated even informal traditions surrounding Supreme Court appointments with reverence. When Senate Republicans refused to hold hearings in 2016 for Merrick Garland, President Barack Obama’s nominee to fill Antonin Scalia’s seat, liberals protested that Garland’s spot had been “stolen” by the GOP — never mind that neither the Constitution nor any statute commands the Senate to hold such hearings.
Imagine if Scalia had lived for four more years and Trump was set to appoint Scalia’s successor on the eve of the 2020 election. Imagine too — and I know this is more of a stretch — that Senate Democrats were ready to use every parliamentary trick available to prevent a vote on Trump’s nominee so Biden could appoint the replacement.
Would you be upset that they’d violated the sanctity of the informal tradition by which presidents are allowed up-or-down votes on their nominees? Do you really think that abortion rights, collective bargaining rights, and the rest are less important than the sanctity of the unwritten rule that presidents get a clean vote on their nominees? I know I don’t.
Letting go of the idea that such traditions are sacred would be a baby step in the right direction. Embracing court-packing would be a longer step in that direction. But the real question is why we should accept a status quo where Supreme Court appointments have such overriding political importance in the first place.
High courts don’t have the power to override the decisions of legislatures in most comparable countries. In some cases, courts don’t play any version of this role — the highest court can only hear appeals on ordinary judicial decisions made by lower courts. In others — including, as Kim Lane Scheppele notes, some of America’s “closest constitutional relatives,” like Canada and the UK — courts exercise an extremely weak form of judicial review, with their purview largely limited to issuing advisory opinions on the constitutionality of laws that can be ignored or overridden by the country’s parliament.
Nor is any such sweeping authority spelled out in the US Constitution. The court just grabbed it in their 1803 ruling Marbury v. Madison. Why should a tiny number of appointed officials, almost all of them graduates of Ivy League universities, be granted these vast powers?
Socialist leader Eugene V. Debs put it well in an iconic 1918 antiwar speech, where he savaged this unelected super-legislature:
Who appoints our federal judges? The people? In all the history of the country, the working class have never named a federal judge. There are 121 of these judges, and every solitary one holds his position, his tenure, through the influence and power of corporate capital. The corporations and trusts dictate their appointment. And when they go to the bench, they go, not to serve the people, but to serve the interests that place them and keep them where they are.
Why, the other day, by a vote of five to four — a kind of craps game — come seven, come ’leven — they declared the child labor law unconstitutional — a law secured after twenty years of education and agitation on the part of all kinds of people. And yet, by a majority of one, the Supreme Court, a body of corporation lawyers, with just one exception, wiped that law from the statute books, and this in our so-called democracy, so that we may continue to grind the flesh and blood and bones of puny little children into profits for the Junkers of Wall Street. And this in a country that boasts of fighting to make the world safe for democracy!
As if to illustrate Debs’s point, the Supreme Court unanimously upheld his conviction after the speech landed him in jail for sedition.
Does the Supreme Court Protect the Rights of Vulnerable Minorities?
Liberals typically react with horror at the idea of taking away the court’s “super-legislature” powers and leaving it as “just” the highest court of appeal (or at most empower it with a much weaker form of judicial review). They see the Supreme Court as a benevolent guardian of unpopular minorities who would otherwise be victims of majority tyranny.
What if homophobic or transphobic majorities, for example, elected socially conservative legislatures that passed antigay or antitrans laws? Wouldn’t we be happy to have the Supreme Court stop those laws from being enacted?
Certainly. But there are at least two problems with this scenario as a general argument for empowering the Supreme Court as a super-legislature.
The first is that things will only work the way that liberals think they will if the majority of justices have socially liberal views. While it’s true the court has the power to overturn laws passed by conservative legislatures that violate the rights of minorities, it’s equally true that it can overturn laws to protect minorities passed by progressive legislatures — as it’s done so many times. Hence, a liberal integrationist court will give you Brown v. Board of Education, but a conservative racist court will give you Dred Scott v. Sandford.
At this point, presidents understand perfectly well what positions their appointees hold on social issues. Liberal presidents appoint justices they know will intervene on behalf of vulnerable minorities in cases involving those issues, and conservative presidents appoint justices they know will rule in the opposite way. The effect isn’t to limit legislation by some principle that’s guaranteed to be socially liberal but simply to inject whatever the social views of previous presidents happen to be on the review of later legislation.
The rosy liberal view of the Supreme Court’s “normal” function stems from the string of progressive decisions made by the Earl Warren–led Supreme Court in the 1950s and ’60s, which expanded the rights of criminal defendants, ended school prayer, and tried to impose school desegregation on recalcitrant Southern states. But as the legal scholar Samuel Moyn often points out, liberals who think of the Warren Court as the norm and define all the cases before and after where the court acted in the opposite way as aberrations are getting things backward. It was the Warren Court that was the aberration.
This brings us to the second problem with the liberal argument for judicial review: the unpopular minority that the court has most often protected is the wealthy. The case referenced in Debs’s speech wasn’t an anomaly. FDR’s expansion plan — derided even by many liberals as a power-grabbing scheme — was proposed because the Supreme Court kept blocking New Deal reforms. If progressives managed to push Medicare for All through Congress, we can be confident that conservatives on the court (likely joined by some justices appointed by neoliberal Democrats) would come up with a reason to declare it unconstitutional.
As with social issues, the effect of giving the Supreme Court this kind of power is to impose the economic views of previous presidents on the review of future legislation. That means that if a social democratic majority — never mind a socialist one — ever takes over Congress and the presidency, if we play the usual game of waiting for justices to retire or die before appointing replacements and meekly accepting the super-legislature’s most outrageous decisions, we’d have to hold onto power for decades in order to accomplish major reforms. Good luck with that.
Gutting the Supreme Court
The Supreme Court is a fundamentally reactive institution that tends to enshrine whatever balance of power is already present in society. To the extent that it doesn’t just preserve the preferences of previous administrations like some awful disease-carrying insect trapped in amber, it’s because court majorities are to some extent influenced by whatever’s going on in society as a whole.
In the twenty-first century, equality wasn’t decreed by the court until popular opinion on gay rights had already changed. It’s no coincidence that the progressive Warren Court coincided with the period when labor union density was at its peak.
At best, if future democratic socialist electoral gains coincide with a resurgence in working-class organization, the Supreme Court might be a minor hindrance to progress. At worst, it will act as it so often has before: as a kind of capitalist guardianship council.
Either way, if we’re serious about enacting pro-worker policies in this country, we need to counter the institution’s power to override the will of popular majorities. And our ultimate goal should be to strip it of that power entirely.