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The Supreme Court Problem, Without the Partisanship | Focus re-run

It's back in the news. Whatever you think, it probably proves the court is a mess of an institution we'd do well to reform.

This Focus originally appeared on August 29, 2021, under the headline: "The Supreme Court: Political, Unaccountable, and All Too Powerful." Due to the recent leak of a Supreme Court opinion portending an overturn of Roe v. Wade, we decided to re-publish it.

In September of 2020, I was living with friends in a COVID pod—a hype-house, if you will—in rural Missouri, taking virtual classes and spending our senior year of college in a way none of us expected we would. One Friday night—we had cooked a wonderful meal and were sitting outside to eat—one of my friends got a call from his sister. None of us had been checking our phones, so when he came back to the table and told us that Ruth Bader Ginsburg had passed away we were taken by surprise. The news cast an immediate pall over our gathering. For all of us, adherents to varying positions somewhere left of the center of the political spectrum, it was a disturbing portent of things to come.

Some of us shed tears in genuine anguish. We argued over whether Ms. Ginsburg had erred in not ceding her seat when Barack Obama was president and the Democratic Party controlled the Senate. Dispassionately, I asserted she had. In our collective misery, we all drank too much that night, not fun-drunk but eminently-despondent-drunk.

To a conservative, this might seem the epitome of the absurd—college liberals getting worked up over the death of a glorified bureaucrat. But the stakes were real. Then-President Donald Trump intimated that he hoped Ms. Ginsburg’s replacement would rule in his favor in the event of a contested election. Amy Coney Barrett ultimately did not do so but fear to that effect was hardly unjustified. It was easy to predict that Mitch McConnell would reverse the position he took in the aftermath of Antonin Scalia’s death in 2016 that the Senate should not act to confirm a Supreme Court nominee in an election year: yet another indication that power—not norms—ruled the institutions of American government.

Partisanship aside, there are no circumstances under which citizens should feel such angst, as though democracy itself depends on the health or moral judgement of—often senior—appointed individuals who possess enormous capacity to shape the country, with minimal accountability to the electorate.

The Supreme Court is too powerful and too politicized. At this particular moment those on the center and the left are angry about the status of the court, feeling as though they have been cheated out of at least two seats, with concrete policy consequences. But the right, too, has at times directed its ire at the undemocratic nature of the Court in the aftermath of Roe v. Wade, federal busing, and Obergefell v. Hodges, which legalized gay marriage across the United States.

The notion that the Court has ever been apolitical is, put bluntly, a fiction. It was established explicitly by the newly minted Constitution in 1788 as the least powerful branch of the federal government, and its rapid ascent to immense power through judicial review is a story of how essentially political the Court has always been. When then-Chief Justice John Marshall established the power of judicial review in the Marbury v. Madison case, he empowered his Court and all future Courts to determine whether or not a piece of legislation, an executive action, or the action of any agent within the nation is constitutional. Marshall’s decision was a fundamentally political act, a calculated grasping of new power for the young and malleable institution over which he presided.

Judicial review is an important feature of the American political landscape; there is no denying this fact. In a democracy governed by a constitution, there must be arbitrators with special expertise empowered to resolve legal disputes. The Court is certainly the least democratic of our federal institutions, but it serves a crucial role.

At the same time, however, vesting faith in the impartiality of such actors, as well as enormous political power, is unwise. Since Marbury, the Court has exercised its power for judicial review to strike down important legislation and even to “legislate from the bench” (i.e. to effectively establish new laws through its decisions). In the words of the conservative political scientist John Agresto, the Court’s power of judicial review has transformed into “judicial supremacy.” In his view, the Court has become an ultimate authority, not subject to the give-and-take of checks and balances which constrain Congress and the President and which the country’s founders established and intended to be its institutional bedrock.

Defenders of the Court assert that it is justified in the power it holds because such power has played a crucial role in upholding the natural rights enumerated in the Declaration of Independence. Unfortunately, this view is not borne out by reality. In only the second exercise of the Court’s power of review, it held in the Dred Scott v. Sandford case that enslaved Black Americans were property and that the Missouri Compromise, legislation which forbade the practice of slavery in Northern states, was unconstitutional. Nothing less than a civil war was required to overturn that ruling. Any argument that such a ruling was constitutional at the time likewise does not hold up, as a host of legal minds have since observed.

So too did the Court rule against civil rights legislation passed during the Reconstruction period and a series of child labor laws in the early twentieth century. All such decisions were political, in tension with the democratic will of the people as expressed through its elected legislature, and—to the eyes of any reasonable observer—in violation of the 14th Amendment or constitutional clauses that empower Congress to regulate commerce.

Cases such as Brown v. Board or Obergefell might be evidence of the Court properly defending constitutional rights, liberties, and the well-being of citizens, but only to the extent that they show that the Court has had some praiseworthy moments. Brown is itself a correction of the Court’s past error in its Plessy v. Ferguson ruling, which held, again in a blatant violation of the stated principles of the Declaration and the 14th Amendment, that non-white Americans are “separate but equal.”

Once a justice is confirmed, the checks and balances which ought to constrain his or her actions are nearly nil. There is a process of judicial impeachment, but this is reserved for criminal activity, not for disagreements over the constitutionality of a given case. But, as Agresto argues, there is constitutional room for checks on the Court, ideally in the form of a back-and-forth interpretive dialogue between Congress and the Court.

Congress, in his view, has a role to play in interpreting our supreme law, and should be more aggressive in making repeated attempts to reframe and rework legislation rejected by the Court. In other words, it ought to act on its imperative as a popularly elected body to work the will of the citizens it represents through the constitutional process, rather than merely giving up when the Court rules against enacted legislation.

Such an argument bears consideration in an age when both liberals and conservatives have expressed dissatisfaction with the Court’s opinions. It might even be worth contemplating legislation which more actively empowers Congress to engage on a more equal footing in dialogue with the Court over contested issues.

Other cases for reform are popular today among those on the left dissatisfied by a Court increasingly constituted by conservatives. Most prominent among these are judicial term limits and expansion of the number of justices serving on the Court. As popular as these are, and despite having some potential to lower the partisan stakes of tensions over Supreme Court appointments, they do not do enough to disempower the court and end judicial supremacy.

Lowering the stakes is not enough to prevent a massively controversial ruling from upending our politics. Moreover, expansion has the potential to introduce a spiral of tit-for-tat additions to the court and even to obliterate its crucial independence, reducing it to a powerful tool for the executive or the legislature. Term limits merely shift the source of the arbitrary nature of the Court’s makeup from deaths and retirements of justices to whichever party holds the senate and the presidency concurrently. Further, the introduction of term limits would likely require a constitutional amendment, something that no American seriously believes is likely in today’s immensely polarized era.

But there are other reforms on the table, some of which may do more to address the core issue of the lack of checks and balances on the Court. President Joe Biden recently established a commission to provide testimony on potential Court reforms. In his written testimony for the commission, Samuel Moyn, a legal scholar at Yale University who identifies with the progressive left, poses an argument not too unlike the conservative Agresto’s. Like Agresto, Moyn makes the case that Congress should be more aggressive in exercising its legislative prerogative in contest with the Court. He puts less emphasis on a dialogue of constitutional interpretation, but his support for legislative power to check the Court certainly represents the possibility of cross-partisan agreement. However, it’s not clear whether today’s conservatives, in contrast to Agresto’s writing in the 1980s, would sign on.

Moyn also asserts that Congress should exercise its power, laid out explicitly in the effectively dormant “exceptions clause” of the Constitution, to strip the judiciary of jurisdiction in certain areas of policy. Here he and Agresto are in opposition to one another. Agresto believes that jurisdiction-stripping is a step too far, with the potential to reduce the court’s role in constitutional democracy beyond what is needed. Regardless of disagreement, though, there is room for fruitful debate between progressives and conservatives who share the belief that the court’s power has grown beyond what is healthy for democratic politics.

To believe that the Court can be apolitical or that it can engage in self-restraint in a moment of heightened political polarization is simply naive. When the Court rules on a salient issue, it is acting politically, although—crucially—not democratically. Likewise, attempts to lower the stakes of the confirmation process do not get at the heart of the crisis, and carry their own risks. Expansion and term limits do not prevent the Court from handing down a ruling that radically alters the American political landscape with no possible recourse but a nigh-impossible constitutional amendment.

All of this is hardly to say that a Court with the power to exercise judicial review is not necessary. In fact, judicial review is a crucial component of a thriving constitutional democracy, in which all citizens, both elected and not, appointed and not, are in a constant act of mutual interpretation and negotiation over our collective past, present, and future. But judicial review cannot be judicial supremacy, the final word over our democratic life.

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Further Reading

The Supreme Court and Constitutional Democracy, by John Agresto

This is an excellent book by a conservative political scientist from which I drew for a great deal of the above argument. To say that the book is merely "political science" is to understate its value—it weighs on the issue of the Court philosophically, and lays out a fascinating vision of the Constitution and its role in our democracy.

"Written statement of [Professor] Samuel Moyn," to the President's Commission on the Supreme Court of the United States.

Professor Moyn makes a strong case for Supreme Court reforms in line with but somewhat more aggressive than Professor Agresto's. Whether one thinks his arguments go too far or Agresto's not far enough, it's a useful counterbalance against Agresto's conservative perspective from a committed member of the progressive left.

"The Supreme Court Needs to be Cut Down to Size," by Jamelle Bouie, in The New York Times.

Jamelle Bouie, perhaps my favorite opinion columnist, engages in an argument similar to Moyn's and Agresto's but perhaps in a more digestible format. Wonderfully written and worth spending a few minutes to read.

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