The legal left once was riding high. It controlled the Supreme Court, overruled Congress, and ignored the public’s wishes. These political liberals, since rechristened “progressives,” embraced the sacred principle of judicial review. Only independent justices, sheltered from retrograde popular currents and Neanderthal politicians, could be trusted to move the country toward ultimate enlightenment and nirvana.
Indeed, progressives often stood with religious and political minorities to protect important liberties from majoritarian abuse. The Supreme Court finally interpreted the Equal Protection Clause to outlaw racial segregation. Affirmed the First Amendment rights of Jehovah’s Witnesses. Insisted that even groups with vile viewpoints, such as Nazis, were nevertheless free to speak and demonstrate.
These and similar cases advanced liberty by protecting individuals from government. However, in the 1960s the legal left began focusing on economic and social issues, turning the judiciary into another legislative branch of government, a forum for appeals after losing elsewhere.
Lefties manufactured new meanings for old terms — hence the label “living Constitution” — and appointed justices willing to torture the Constitution and U.S. Code to confess progressive verities. The most dramatic case was Roe v. Wade, which overturned every state abortion law. Even many committed liberals acknowledged that the ruling, based on alleged penumbras and emanations along with undoubted permutations and emasculations of the Constitution, was essentially a legislative enactment which only faked a loose connection to constitutional law.
Yet progressive activists seemed shocked when advocates of the rule of law fought back. For instance, the Atlantic’s Adam Serwer complained: “The current makeup of the Roberts Court is itself the outcome of a partisan battle that has spanned decades, one in which the conservative legal movement has won a tremendous victory that is certain to shape American life for generations to come.” True, but progressives initiated judicial hostilities much earlier. For example, Franklin Delano Roosevelt appointed justices he was sure would sanction his dubious economic experiments, irrespective of the Constitution’s dictates.
Nevertheless, for years the Senate mostly approved nominees of both parties without controversy so long as they were qualified — consider the equally overwhelming votes for Antonin Scalia and Ruth Bader Ginsburg. This era essentially ended with the 1987 rejection of Robert Bork. His jurisprudence deserved criticism, but Sen. Ted Kennedy’s vile demonization of a heretofore respected jurist inaugurated a new era on Capitol Hill. Democrats went from complaining that Republicans made overturning Roe a “litmus test” to insisting that judicial nominees pledge their legal lives and sacred honor to protect the decision until the end of time, and beyond if necessary.
Although Republican presidents attempted to appoint jurists who intended to act as judges rather than politicians, the GOP installed almost as many duds as hits. Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens, and David Souter were dramatic busts. Sandra Day O’Connor and Anthony Kennedy were lesser disappointments. Only by the end of the Trump administration was there a Supreme Court majority dedicated to interpreting the Constitution as if it meant something, as opposed to treating the document as an ancient inkblot left to political and philosophical divination.
At this point progressives realized that the judiciary they had expected to disenfranchise right-leaning political majorities also might overrule leftish political coalitions. Having treated Roe’s assault on popular rule as sacred scripture, leftie activists expressed dismay that courts could similarly thwart democratic decisions with which progressives agreed.
Bad enough for the Left was the prospect of judges less often acting as legislators and amending the Constitution from the bench. Life as a left-wing constitutional lawyer was easy when you could count on the Supreme Court to act as your personal constitutional convention and dispense with the legal formalities required to change the nation’s fundamental law. For instance, fighting legislative battles to change 50 state (plus the District of Columbia) laws is hard work. Convincing a court majority to toss out every law in one instant, not so much!
Worse for legal leftists, however, was realizing that justices could overrule past decisions. Progressives always assumed that history moved only in one direction. So progressive jurists expected to make everything up as they went along, and then be followed by conservatives who would dutifully apply precedent to ratify liberal decisions. Everyone would be happy, or so the activists assumed.
But no. It turned out that law and practice allowed judges to reverse progressive decisions. Who knew!? Serwer quoted the late Justice Thurgood Marshall complaining that “Power, not reason, is the new currency of this Court’s decisionmaking,” since it was a shift in personnel, not the law or facts, which typically led to the high court’s reversals. Yet the legal left was most sensitive to power shifts. Roe was decided in 1973 because earlier justices could not imagine that a constitutional provision approved when most states banned abortion could be interpreted to ban such bans. The abortion case reflected new court members inclined to legislate — that is, “power, not reason.”
Many progressives at the time, then known as liberals, were dissatisfied with the result. One of Roe’s most brutal critics was John Hart Ely of Yale Law School. He concluded that the Court’s reasoning was “simply not adequate.” He called the decision “very bad” and a “dangerous precedent.” He pointed out that “Roe lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine.” Ultimately, he charged, the ruling “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Such was the consequence of leftwing judicial power games.
The tragic realization of the Left that this era is over has resulted in wild wailing and frenzied gnashing of teeth in the progressive legal academy. Belief in judicial independence is out. Support for judges defending minorities against majority rule is so yesterday. Simply filling judicial vacancies as they occur is now viewed as unethical. Choosing judges who believe the Constitution as written is deemed to be highly anti-democratic.
Yet going back to politics to promote their agenda has been tough for leftie activists. So their byword has become court-packing — add a couple dozen, or maybe even hundreds, of new jurists and let them work their wokish magic. Of course, to prevent the GOP from returning to power and upping the ante by adding a few hundred or thousand new justices, the Left also wants to dismantle the Senate. And create a bunch of new states — District of Columbia, Puerto Rico, American Samoa, Abkhazia, Eswatini, Duchy of Grand Fenwick, and who knows what else?
The Left’s challenge is that moderate Democrats and the president aren’t ready for a far-left makeover of the entire political system. Even Roosevelt couldn’t pull off a court-packing scheme with an overwhelming Democratic congressional majority. Most Americans wouldn’t trust even him with well-nigh absolute power. Shortly after taking office President Joe Biden established a commission to evaluate court reform. He appointed as members a cross section of legal scholars, to the consternation of progressives who had expected the administration to pack the panel with leftie alarmists who would recommend packing the court with leftie activists.
Instead, the Commission warned of risks “including that [court expansion] could undermine the very goal of some of its proponents of restoring the court’s legitimacy. Recent polls suggest that a majority of the public does not support court expansion. And as even some supporters of court expansion acknowledged during the commission’s public hearings, the reform — at least if it were done in the near term and all at once — would be perceived by many as a partisan maneuver.” Ultimately, the panel observed, “Court expansion is likely to undermine, rather than enhance, the Supreme Court’s legitimacy and its role in the constitutional system, and there are significant reasons to be skeptical that expansion would serve democratic values.”
When the panel released its initial findings, distraught lefties seemed ready to commit ritual Seppuku en masse on the Supreme Court steps to express their displeasure. Slate’s Dahlia Lithwick and Mark Joseph Stern denounced the report as “craven and misleading.” Laurence Tribe, one of the grand old men of the “make it up along the way” school of jurisprudence, said “Many people, and I include myself in this, believe we are indeed in a ‘break-the-glass’ moment.”
Actually, Tribe’s “break-the-glass” moment probably occurred when he first realized that he would never sit on the Supreme Court, where he could afflict the rest of us with his benighted nostrums. Anyway, court-packing would be a “break-the-republic” moment. Republicans would respond in kind at the first opportunity and judges would rightly be seen as nothing more than politicians in robes. Any presumption of judicial impartiality would disappear, even for trials. The most important American legal values, including ones championed by liberals before they became progressives, would lose effective constitutional protection.
The commission’s informal stance against court-packing doesn’t mean nothing should be done. Other reforms should be considered. The best approach would be to depoliticize courts by having judges treat the law as a mandate to decipher and apply meaning, rather than as an excuse to concoct and impose fantasy.
Today the typical progressive has no need for a text, whether statute or constitution. All he or she need do is imagine what the law should be and then rule. The problem for the legal left is that even the unschooled masses would recognize this process for what it was, making things up, so judicial activists maintain the pretense that they are interpreting something passed into law. Alas, since progressives realize that much of their agenda will never be approved democratically because of public opposition, they are unlikely to ever again support judges who do law rather than policy.
However, other reforms would help depoliticize the court and reduce the significance of any appointment. Fixed terms should be the starting point, though they might require a constitutional amendment. The size of the court should be set after being expanded to broaden members’ perspectives and experiences — over time, to spread out new appointments. Requirements for amending the Constitution should be eased, so judges would feel less pressure to arbitrarily change America’s founding document from the bench. The position of chief justice should be rotated among associate justices. These steps would not end the partisan battle over judicial appointments. But such a package might help ease the conflict.
Now, when no Supreme Court nominations are pending, would be a good time to address judicial reform. It won’t be long before U.S. politics is once again convulsed with a high court battle. At that point, judicial change will again become impossible, a least until the latest political fight has receded in the nation’s rearview mirror. It would be best to act soon before legal progressives gain sufficient power to do something really stupid, dangerous, or both.
Doug Bandow is a graduate of Stanford Law School and member of the California and D.C. bars. A former Special Assistant to President Ronald Reagan, he is the author and editor of several books, including The Politics of Plunder: Misgovernment in Washington.