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.
Justice Brett Kavanaugh’s display of partisan anger doesn’t bode well for the court’s legitimacy. To my eyes, Kavanaugh very loudly made clear what many have quietly suspected: that the justices’ protestations that they are neutral law interpreters—or, as Chief Justice John Roberts is fond of saying, that they are just umpires “calling balls and strikes” —is a lie. Partisanship is alive and well on the court. That doesn’t mean that every case is decided on partisan lines—a lot of the Supreme Court’s (very light) caseload doesn’t have clear partisan implications. But when a case is partisan, the court is too.
That’s why I think the common argument that the court is the “least dangerous branch” is not quite right. It’s true that the court needs the assistance of the political branches—chiefly, the executive—to enforce its rulings. And yet the Supreme Court exercises enormous power and influence. In our culture—which fetishizes the Constitution, the Framers, and the court as an institution (even constructing cults of personality around individual justices)—woe unto the president who refuses to enforce an order handed down from the nation’s highest bench.
The court is in fact very dangerous. Which is why Republicans are so hellbent on owning it. Just think of how Mitch McConnell and his gang denied Merrick Garland a hearing, in the process burning up whatever collegial goodwill remained in the Senate. Here’s the likely reason: There’s a new American governing majority that’s in the process of being born. It’s more diverse, less religious, and, on a range of issues, more liberal. McConnell and the GOP are worried—rightly—that their time as a national party is running out. But before the GOP retreats to its dwindling rural base, it has one last strategy to exercise continuing influence—stack the Supreme Court with right-wing activists. The GOP hopes for gains both short term (keep Trump in the White House and out of a jail cell) and long term (protect the GOP’s voter suppression strategies in the states they control and limit the federal government’s authority to interfere). It’s a toxic strategy, but a likely smart and so far successful one.
Then there’s the promise of more generally frustrating a Democratic majority. Here’s one example of how that might happen: The next Democratic Congress and president are likely to reimpose the wildly popular net neutrality rules that Trump’s Federal Communications Commission just scrapped. Enter Kavanaugh, who, as a judge on the D.C. Circuit, dissented from that court’s decision upholding the FCC’s 2015 order imposing net neutrality rules on the basis of a risible First Amendment argument that net neutrality “infringes on … internet service providers’ editorial discretion.”
Taken to its logical conclusion, this argument weaponizes the First Amendment against all kinds of regulations. As Justice Elena Kagan has noted, the court’s shift toward First Amendment Lochnerism is already well underway. In its June decision in the National Institute of Family and Life Advocates case, the court ruled 5–4 that a California law requiring the sketchy anti-abortion front organizations known as “crisis pregnancy centers” to post notices informing patients that California provides free or low-cost reproductive health services, including abortions, likely violates the First Amendment. The court’s opinion pays scant notice to its 1992 holding in Planned Parenthood v. Casey, in which the court upheld a Pennsylvania law requiring physicians to provide women considering abortions with information related to adoption as well as the health risks of abortion. In his dissent, Justice Stephen Breyer noted that “a Constitution that allows States to insist that medical providers tell women about the possibility of adoption should also allow States similarly to insist that medical providers tell women about the possibility of abortion.”
So, mandated anti-abortion speech gets a First Amendment pass, but mandated pro-choice speech gets struck down. Go figure.
The very next day, of course, in the Janus case, the court struck down 5–4 an Illinois law (similar to laws in 22 other states) that allowed public-sector unions to collect fees from nonunion members for collective bargaining. The court’s conservative majority—buttressed by the vote of President Donald Trump’s first appointee Justice Neil Gorsuch—overturned a perfectly reasoned 1977 precedent and ruled that the law violates the First Amendment because it compels employees to support a union message they may oppose.
A few more decisions like these, and we will be facing the prospect of a 21st-century version of the pre–New Deal Lochner court—this time using a partisan reading of the First Amendment, rather than the Due Process Clause, to cripple the federal government’s power to regulate.
I will readily admit that over the span of American history, the court has seldom gotten too far out of line with democratic majorities of the moment. But the past isn’t always prologue. This time, I think the Republicans’ deliberate strategy is to engineer that misalignment, in the hope of stalling the next wave of progressive legislation that I expect (and they fear) is coming. To stall change doesn’t amount to preventing it altogether. But as the great economist and statesman John Maynard Keynes so rightly noted, the long run “is a misleading guide to current affairs. In the long run we are all dead.”
Before I’m dead, I’d like to see America regain its place among the community of decent nations. And to my mind, that won’t be achieved by doubling down either on our old, terse, threadbare Constitution or on the cabal of nine graduates of Harvard and Yale who “interpret” it. The real task is to reinvigorate our democracy, and part of that, I believe, is shrinking the power of the courts to overrun our citizens’ democratic decisions.
There are lots of ways to do that and some of them are starting to poke their way into the conversation. Nothing in the Constitution says we have to have nine justices on the Supreme Court. So maybe let’s have 13.
Or, we could end life tenure. The Constitution only says federal judges “shall hold their Offices during good Behavior.” As Stuart Taylor noted, the first 10 justices served an average of less than eight years. Only two lived to age 70. The 90 justices who had completed their terms by 1970 retired (on average) after 15 years on the bench, at age 68. Given life spans in the late 1700s, the founders probably didn’t foresee the prospect of federal judges ruling over multiple generations. Couldn’t Congress simply pass a law defining “good Behavior” as service for a maximum of 12 years, or until the age of 68, whichever comes first? And then Congress could strip the federal courts of power to review that law using the Constitution’s Exceptions Clause (Article III, Section 2, Clause 2) that allows Congress to make exceptions to the Supreme Court’s appellate jurisdiction. Article III also gives Congress power to “ordain and establish” inferior federal courts; the power to establish the lower federal courts includes the power to limit their jurisdiction. Or perhaps the Senate could impose a rule that it will only confirm judges who commit to serving for a limited time.
There is a lot that a new progressive majority could do to end our current era of judicial supremacy. And given what we saw with our own eyes last week, it’s time for progressives to start making plans. Expanding the number of justices, adding seats to the federal bench, and ending life tenure—all of these will help curb the power of the federal courts and send a strong signal that democracy is back in the driver’s seat. But there are deeper reforms that a unified Democratic government could push through. I’ll mention one that perhaps would most fundamentally reorder American constitutional democracy.
In the Canadian Constitution is something called the Notwithstanding Clause. That clause allows the legislature to declare that a law shall operate “notwithstanding” a judgment of the Supreme Court of Canada. That is, the clause allows national or provincial legislatures to override a court’s decision to strike down a law. The Notwithstanding Clause has seldom been used. But the presence of the clause in the Canadian system is a fail-safe that protects democracy against partisan constitutionalism.
We could have the equivalent of a Notwithstanding Clause in the United States. And we wouldn’t have to amend the U.S. Constitution to get it. How could that be done? Congress could pass a law stating that Congress may override any Supreme Court decision (other than the negligibly small area of the court’s original jurisdiction) by the ordinary legislative process. And then it could use the Exceptions Clause and its power to limit the jurisdiction of lower federal courts to strip the judiciary of power to resist overrides.
Such an approach may seem radical. But consider how deeply rooted in American society is the pathology that has led us to our current emergency. Almost two centuries ago, Alexis de Tocqueville noted that “[t]here is hardly any political question in the United States that sooner or later does not turn into a judicial question.” This Tocqueville took as a sign of health.
But he was wrong. In the long run, the American tendency to turn political questions into judicial questions withers democracy. It empowers lawyers and disempowers citizens. It numbs our sense that something crucial is at stake in elections. And it leads us to treat the Constitution and judicial review, institutions that should be servants to democracy, as masters of it. We’ve been fooling ourselves. If a political culture is rotten, no constitution—even one much better designed than ours—can save liberal self-government. Our courts are long overdue for a demotion.
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 5: Why Supreme Court Term Limits Won’t Work and What to Do Instead