The following is part of a debate between Daniel Hemel and Christopher Sprigman over how progressives should react to the right-wing takeover of the judicial system as heralded by the seating of Supreme Court Justice Brett Kavanaugh.
It’s true that the Supreme Court is not immune from partisanship. But nor do the justices always vote along party lines—even where the stakes are at their highest. In Ex Parte Endo, seven FDR appointees bucked the president. In United States v. Nixon, three justices who owed their seats to President Richard Nixon nonetheless voted to order him to deliver White House tapes to a federal district court. In the Guantánamo cases, the George W. Bush administration lost the vote of Justice Anthony Kennedy, who, despite his status as the “swing” justice for several years, was a Republican through and through. Chief Justice John Roberts has (twice now) disappointed the Republican Party by protecting the Affordable Care Act from potentially fatal attacks. Even Justice Neil Gorsuch has gone against the Trump administration on an issue—immigrant deportation—that we know is near and dear to the president’s heart.
And, yes, the court can be influential. That does not make it illegitimate. The court’s power rests on a broad consensus among elected officials and voters across the ideological spectrum that we are better off with robust judicial review than without. You can argue that the majority view is mistaken. But in light of the majority view, the argument that the court lacks legitimacy because it is countermajoritarian falls flat.
Those who foresee the Roberts court becoming a real obstacle to progressive change favor a pre-emptive strike. My response is: not so fast. The next time progressives are in power, I think we still are a lot better off with the Supreme Court in its current form as a check. Progressive presidents sometimes trample over civil liberties too—it was FDR who interned American citizens of Japanese descent, LBJ who jailed draft protesters, and Obama whose administration carried out extrajudicial killings of American citizens abroad. The justices were too slow to act in the first case and AWOL on the latter two, but the solution is not to cow the court into submission. If indeed a future court becomes an insuperable obstacle to progressive change, perhaps we should reassess—but we’re not there yet.
To be sure, the next few years will be frustrating for progressives. I agree with you that the weaponization of the First Amendment for conservative ends will likely continue in the short to medium term. We should criticize those decisions when they come down (and for a long time afterward), and we should articulate an alternative vision of the First Amendment that protects self-expression and preserves the marketplace of ideas while not shielding businesses from sensible regulations. But should we give up on judicial supremacy because of Janus, NIFLA, and the threat to net neutrality? That seems rather rash. Take away the court’s power to strike down popular laws and we’re back to a word in which flag burning is banned, the Pledge of Allegiance is mandatory in schools, the press is subject to prior restraint, and public employees are prohibited from speaking out on matters of public concern. The bathwater may be foul, but I’d still rather save the baby.
Beyond the First Amendment context, the constitutional sins of the Roberts court are likelier to be sins of omission rather than commission. Progressives primarily fear a court that fails to intervene when states curtail access to the ballot, that fails to intervene when states impose stringent abortion restrictions, and that fails to intervene when President Donald Trump meddles in the investigation of his campaign’s Russia ties. Defanging the court—as some progressives propose to do—simply ensures the nightmare scenario every time. Better to have a court that sometimes underpolices than to have no cop on the beat.
Which doesn’t mean that it’s too early to discuss institutional reforms. But I don’t think adding justices or limiting their terms (and thereby ensuring more frequent appointments) is the way to start. As my colleagues Lee Epstein and Eric Posner have documented, Supreme Court justices exhibit loyalty to the president who appointed them—beyond what ideology and party would predict. In other words, a Trump appointee is more likely than another Republican-appointed justice to side with the Trump administration, and an Obama appointee is more likely than another Democratic-appointed justice to side with Obama. Court-packing and term limit proposals—which would result in the then-current president appointing more of the justices who serve on the bench while she or he is in office—would mean that the court is even more loyal to the White House than it already is. This outcome is especially disconcerting if we are worried about the court running interference for a president facing criminal indictment.
My preferred approach would take us in the opposite direction. Instead of limiting the terms of the justices, we should delay their start dates. The sitting president still would appoint a justice to fill a vacancy, but the new justice’s term would begin when the sitting president leaves the White House. Thus, Justices Sonia Sotomayor and Elena Kagan would have taken their seats on Jan. 20, 2017 (when Obama left office), and Gorsuch would take his seat on Jan. 20, 2021 (or whenever Trump vacates office). No private citizen gets to choose the judge in her own case, and the president—whose administration is the court’s most frequent litigant—should not get to do the same.
If too many justices leave the bench during a single presidency such that the size of the court dwindles below, say, five, we could randomly select federal circuit judges to serve on the high court temporarily. We can argue about exact numbers and backup plans, but the end goal should be to preserve judicial independence rather than to deepen the court’s subservience to the political branches. On this point, lawyers and laypeople of all political and ideological stripes can agree: Kavanaugh’s confirmation is an opportune moment to debate potential improvements to an institution whose stature has been shaken. To paraphrase the outgoing mayor of my city: A crisis is a terrible thing to waste.
Part 1: Should Progressives Wage War on the Supreme Court?
Part 2: The Supreme Court Is Retrogressive and Expendable
Part 3: The Supreme Court Is a Bulwark of Democracy
Part 4: Three Plans for Saving Voters From a Right-Wing Activist Supreme Court
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