The retirement of U.S. Supreme Court Associate Justice Anthony Kennedy under a GOP president was one of the most predictable crises of recent years, but one that nevertheless seems to have triggered, almost overnight, a sea-change in how the left talks about the judiciary. Sure, there have been the occasional pleas for “moderate” nominees from President Donald Trump. Yet even milquetoast progressive legal commentators such as Ian Millhiser of Think Progress – whose greatest hits include calling Antonin Scalia a “great scholar” – have now called for court packing. There has been a notable shift in the Overton Window about the Supreme court.
“Court packing” has a negative connotation – it stirs up images of strongmen trying to work the system by rigging its membership in their favor. It shouldn’t, though; from almost day one of the United States, court packing has been a germane concern for the other two branches of government, and for wholly practical reasons. Court packing is an American as apple pie, and it’s needed more than ever.
The Supreme Court: A cure worse than the disease
The case that created the Supreme Court as we know it was about court packing. Marbury v. Madison concerned the last-ditch effort of outgoing President John Adams to fill up the judiciary with Federalist judges before Thomas Jefferson took office. Jefferson’s inauguration marked the first time the Federalists would not have control of the executive branch after 12 years of George Washington plus John Adams, and they were scared – like any American conservative party reliquinshing its control of governmnet, they saw the unaccountable, life-appointed judiciary as the rearguard of its power.
The Supreme Court’s ruling in Marbury v. Madison established the precedent of judicial review, which permits the judiciary to take another look at executive and legislative actions. Nowhere in the U.S. Constitution is the Supreme Court afforded the power to strike down laws or even to deterine their constitutionality; though that right is hinted at in some of the Federalist Papers, it was primarily engineered by Chief Justice John Marshall in Marbury v. Madison to resolve one of the many intractable problems arising out of the separation of powers fundamental to the U.S. political system: How should a new administration execute the commissions of judges already nominated and approved by members of the opposing party?
Of its many flaws, the U.S. Constitution’s lack of foresight about the rise of political parties is one of the most significant. It’s amazing in retrospect that the “geniuses” behind it didn’t think that, say, having the Senate and the presidency divided between fiercely opposed factions might grind the government to a halt. Even though the Supreme Court was almost certainly not intended to be a super-legislature, it became that in part because the uniquely inefficient design of the American government often leaves no clear resolution to partisan disputes.
Following Marbury v. Madison, the Supreme Court took on an activist role it has since never let go of. It has weighed in on every issue from the Fugitive Slave Act (“it’s good, basically,” to paraphrase the court led by Jackson appointee Roger Taney) to Japanese interment (“also good,” to summarize the Harlan Stone court’s opinion in Korematsu v. United States), almost always on the wrong side morally. Why the consistently awful opinions?
Because the Supreme Court is a fundamentally conservative institution. It’s the least accountable branch of the federal government due to lifetime tenure, plus it’s consistently staffed by the bourgeoise since many presidents have preferred highly credentialed lawyers or previous politicians as nominees. That’s a recipe for dominance by conservative white men, who can issue whatever opinions they like with virtually no fear of consequences.
The Supreme Court is, as such, a horrible cure to the disease of divided government: Whenever party disputes grind the participatory political system to a halt, the court steps in to give the reactionary perspective of the upper classes. Its conservatism is the product of not only of its insularity from democratic society, but also because of its links to two anti-democratic instiutions: The Senate and the Electoral College, whose power it reinforces.
These institutions over-represent rural white populations and have helped sustain conservatism in the U.S. despite immense social change. For most of its history, the U.S. has lacked anything resembling a liberal political party, in part because of the constraints created by the Senate and Electoral College. Accordingly, elections often go to conservative politicians who nominate and approve conservative judges.
The first somewhat liberal party to emerge was the Republican Party of the 1860s, which was founded with the goal of abolishing slavery. However, it quickly ran up against the obstacle of an entrenched judiciary appointed by multiple Democratic and Whig presidents. In response, Abraham Lincoln temporarily packed the court to ensure a favorable majority at a time when more than half the country was committed to the cause of abolition via victory over the Confederacy. He took a step to ensure the judiciary was better aligned with the popular will and moment.
Following the presidency of Rutherford Hayes, the country sunk back into almost compelte conservatism, with a neoconfederate Democratic Party and a business-friendly Republican Party. The courts of this era paved the way for Lochnerism, the anti-regulatory almost libertarian doctrine that prevailed until the 1930s, when President Franklin Roosevelt pushed back against judicial hostility to the New Deal. The Supreme Court finally relented after FDR drew up a plan to pack it with Democrats, who by this time were becoming much more progressive.
How the Supreme Court became one of the highest-stakes battlegrounds
Most presidents have won the popular vote at least once, and the Senate used to be slightly more equitable in the days before a handful of states like California, Texas, Florida, and New York (with a combined population larger than Germany’s) came to dominate the population distribution, although this was offset by the fact that until the 1910s it wasn’t even directly elected. Over time, though, changes in political coalitions and demographics have enabled small pluralities or even minorities of the electorate to elect the politicans who in turn appoint life-tenured judges who basically sit on an unaccountable super-legislature.
That’s a disaster for democracy. The real turning point came in 1968. From the 1950s until then, the 20 consecutive years of Democratic rule under FDR and Harry Truman meant the courts were stacked with liberal appointees, who in turn oversaw an anomalous streak of progressive rulings such as Brown v. Board of Education and Miranda v. Arizona. The traditionally conservative tide of the judiciary had ebbed, and you better believe that America’s reactionaries noticed. When it came time for Lyndon Johnson to replace Earl Warren, Senate Republicans filibustered Abe Fortas’ nomination as Chief Justice, leaving both him and Warren on the court to eventually be replaced by Richard Nixon, who had won 43.4 percent of the vote and promptly went on to nominate 4 Supreme Court justices including future Chief Justice William Rehnquist.
Since 1969, there has not been a single day when a majority of the court’s justices had been appointed by Democratic presidents. The Supreme Court has remained a vanguard of conservative power even as Democrats have come to dominate presidential elections. With the ongoing polarization of the two major parties, the conditions have long been right for a court that is even more divorced from public opinion that it normally is, since even a narrow electoral victory -– like Nixon in 1968, Bush in 2000, and Trump in 2016 – can now lead to a complete partisan transformation of the judiciary. The stakes for every presidential election have been dramatically raised as the Supreme Court became less accountable, more activist (since Congress now neglects many of its traditional responsibilities in areas like immigration and trade), and – ironically – more burnished with the veneer of respectability, since many across the political spectrum see judges as uniquely credible and nonpartisan, despite all evidence to the contrary. Here’s what Thomas Jefferson had to say about judges after Marbury v. Madison [emphasis mine]:
“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
The Supreme Court has also held on to a semblance of legitimacy because its median vote for the past 50 years has been a country club-style Republican, whether Sandra Day O’Connor or Anthony Kennedy, who while basically conservative has been willing to vote with liberals in enough cases to keep both sides of the political spectrum somewhat content. Court-oriented liberal activism on issues such as LGBTQ+ rights has flourished in the period as Congress has stagnated and overall governmental gridlock has worsened.
With Kennedy’s retirement, that careful balance between liberals, conservatives, and a handful of nominal swing votes is gone. We’re now on the verge of a president who won a lower percentage of the popular vote than Michael Dukakis in 1988 having appointed 2 of the 9 justices, while 2 more were appointed by George W. Bush, who also lost the popular vote. Moreover, these judges are all documented ideologues from the Federalist Society, a professional group of conservative lawyers committed to something called originalism.
Originalism purports to be interpreting the Constitution “strictly,” which in practice means “conservatively.” Why anyone in 2018 would want to interpret literally and narrowly a document containing a clause saying slaves are 3/5ths of a person is beyond me, but the right wing as well as large chunks of the media seem to think that this is a more legitimate approach to the law than the “living constituionalism” of liberal judges who account for practical changes in society since the 18th century. Originalism has given us Clarence Thomas, Samuel Alito, and Neil Gorsuch, among may others.
A court filled by such individuals will be hostile to progressive legislation, often bending over backward to find tortured reasons to weaken or overturn it. For example, Chief Justice John Roberts’ opinion in Shelby County v. Holder, the case nullifying large parts of the Voting Rights Act of 1965, is basically a rewrite of the logic in the Dred Scott v. Sanford decision that was so hated even in the 1860s that it inspired multiple constitutonal amendments (the 13th-15th). The Supreme Court’s origins as a racist institution are alive and well as long as the Federalist Society is dictating terms to GOP presidents.
Why court packing is the answer
Court packing by a Democratic administration in conjunction with a Demoratic Congress could expand the Supreme Court to any size, canceling out the appointments by minority-rule presidents. It’s the only way to reign in an institution that has become increasingly removed from democracy and accountability. If it results in the decline of judicial review as a tool, even better – despite a handful of good activist decisions (like Obergefell v. Hodges), the Supreme Court should not be deciding which laws are and aren’t good enough, often in contravention of the public.
A Supreme Court whose size can be changed at any time is one that is far more answerable to Congress, without any need for the impractical solution of impeachment, the nominal check on judges in the Constitution. I don’t think the Constitution is all that great as either a political or moral document, and its failings are a major reason why we’re in this situation of having to pray that octogenarian judges don’t retire and get replaced by 40something neoconfederates. Short of amending the Constitution, court packing is the best solution and should absolutely be on the table for the next Democratic government.