American liberals once worshipped at the feet of Lady Justice. During the 1960s, the heyday of the progressive Warren Court, jurists became the tip of the left-wing spear. If the public refused to accept the latest progressive nostrum, no worries. Judges would simply impose whatever utopian scheme was in fashion.
All in the name of everything that was good and right, of course. Liberals denied they were distorting the Constitution. They believed that if you checked the penumbras and emanations, as well as interstices and permutations, you could discover hidden meanings that had escaped decades, even centuries, of previous policymakers and judges.
And there was no hidebound commitment to antediluvian precedent. Indeed, for 60s lefties, precedent was an attractive target. Sometimes deservedly: In Brown v. Board of Education of Topeka, a unanimous Supreme Court overturned the wretched Plessy v. Ferguson, the 1896 decision that enshrined “separate but equal,” legitimizing segregation. Decades of practical experience had made clear that separate was anything but equal.
During that era, no one on the left talked about “super precedents” that could never, ever be reconsidered, the way progressives reverently speak of Roe v. Wade today. In those days liberals believed, amazingly, that bad decisions should be reversed.
After all, what is the use of treating the high court as a continuing constitutional convention if judges can’t change existing law? It would take all the fun out of being a judicial activist. In fact, a serious commitment to the Constitution requires judges willing to act to enforce limits on state power. For instance, the Fourth Amendment protection against “unreasonable searches and seizures” means nothing if jurists don’t tell the police no. The true test of progressive jurisprudence, however, is torturing the Constitution to confess to what it was never meant to mean.
When conservatives responded to government by judiciary with proposals to limit judges’ jurisdiction, impeach errant jurists, pass constitutional amendments, and more, the Left was horrified. Liberals insisted that judicial independence was the foundation of American liberties. The Founders believed jurists were a bulwark against majoritarian abuses and were bound to enforce the Bill of Rights.
The true test of progressive jurisprudence is torturing the Constitution to confess to what it was never meant to mean.
Indeed, progressives could even quote Alexander Hamilton in Federalist No. 78: “The independence of the judges is equally requisite to guard the Constitution and the rights of individuals.” The Left asked how right-leaning activists, who talked incessantly about freedom, could ignore the Constitution’s framers and plot to tear down the very legal order that undergirded American government.
But that was then; this is now.
Who would have imagined that Republicans might elect a president? And might also control the Senate? And then — shock! — appoint conservative judges? Now jurists cannot be counted on to promote the progressive revolution. Worse, the Supreme Court, and increasingly district and circuit courts, are prepared to roll back government overreaching even when Democrats enjoy a legislative majority or control of the regulatory process.
For years, Republicans had only indifferent success in reversing the courts’ leftward swing. The inexorable liberal advance benefited from some truly awful GOP appointments: William Brennan, Harry Blackmun, John Paul Stevens, and David Souter. Warren Burger and Anthony Kennedy weren’t quite as bad but did significant harm along the way. The Burger Court was less left-wing and activist than the Warren Court. And the Rehnquist Court was a bit less left-wing in turn. But the Left continued to win plenty of big decisions. The best that could be said was that jurists more often acted as guardians of past activism than promoters of future activism.
But those halcyon liberal years finally are over. President Donald Trump and the Republican Senate formed a powerful partnership and launched a concerted campaign to add jurists who backed a broadly originalist jurisprudence. Judges differed in detail, but the consistent objective was to apply the understanding of the law as it was meant to be, not the fantasy of the law as some wished it to be.
Now the Left has decided that such judges are, well, essentially part of a vast right-wing conspiracy. The supposed progressive political majority is prepared to roll, yet these unelected relics of a Constitution written by dead white males are refusing to assist the revolutionary wannabes. Worse, Trump appointees are able to review legislation and regulations, insisting that they conform to legal and constitutional standards. Emma Janger of the People’s Parity Project complained that progressive presidential “attempts to make needed change will simply be blocked by the courts.”
Whoever imagined such a world?? Judges influence policy? Conservative judges influence policy? Do good and decent Americans — excluding the deplorables and their ilk, of course — understand what this means? AlterNet’s Jake Johnson reported, “Progressive advocacy groups and legal experts have warned that these right-wing judges will have the power to shape U.S. law on climate, reproductive rights, and other major areas for decades to come.” Shocking! It is not as if liberal judges ever “shaped” policy in these areas. Anyway, this is the 21st century! How can today’s America be so retrograde, anachronistic, even atavistic to allow Republican appointees a say in such vital matters?
This has set off a left-wing campaign to eliminate judicial independence. Nothing complicated. Progressive activists just want to seize control of the judiciary by means fair or foul and turn judges into submissive accomplices in ever-expanding state power. As Jeffrey Lord observed in The American Spectator, “The Left has decided that the judicial branch is to be used as a second, unelected legislative branch to enforce its political choices of the moment.”
The moderate left-wing position is to concoct some scheme to ensure “balance” on the high court. Of course, that never was a concern on the left when liberal activists predominated in the judiciary. But such a proposal, if implemented honestly, might diminish political warfare over the courts. Indeed, the best idea, advanced by analysts across the political spectrum, is term limits, which would affect both sides equally.
True progressives, however, have made no pretense of desiring balance. Many advocated formally packing the high court, à la Franklin Delano Roosevelt. Then even Roosevelt’s fellow Democrats balked at destroying the judiciary’s role as a separate branch, costing the president political capital and moral authority. But the Left today hopes the new Democrats won’t let constitutional qualms get in the way of brute politics.
The idea is simple: expand the body’s size and add as many new judges as necessary to ensure a revolutionary outcome. Of course, Republicans could repay the favor if they regained control — which would spur yet another Democratic enlargement. But no problem. Heck, if the court is going to decide policy as if it was a robed legislature, then why not make it as big as a traditional legislature? Even some of the Democratic presidential contenders criticized the idea. So did Ruth Bader Ginsburg, who made the obvious point that doing so would make the judiciary look partisan.
Alas, from the Left’s standpoint, there is no guarantee that the Democrats will win the presidency and Senate. Which means truth, justice, and all that is good and right in the universe might not be done after all. And even if the progressive legal equivalent of the Second Coming occurs, what of the meantime? The right-wing horsemen of the judicial apocalypse will ride, committing legal mayhem.
Enter Chuck Schumer (D-N.Y.). Commenting on a recent abortion case, he declared: “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
Schumer’s threat was presumably political rather than physical. A prosecution for obstruction of justice seems an overreach. His comments, however, certainly constituted an attack on judicial independence. Yet he was defended by Sen. Sheldon Whitehouse (D-R.I.). The latter denounced criticism by Supreme Court Chief Justice John Roberts, who, said Whitehouse, was “the architect of an 80-case barrage of partisan, 5-4 decisions for big Republican donor interests.” It would be interesting to go back to the 1960s and count how many decisions the Warren Court delivered for Democratic interest groups.
Whitehouse also complained of Sen. Mitch “McConnell’s effort to pack the Court.” As in filling vacant judgeships? How many Republican jurists did presidents Barack Obama, Bill Clinton, Jimmy Carter, Lyndon Johnson, and John F. Kennedy appoint? Whitehouse is not upset at GOP court-packing, which has not occurred. Rather, he is angry that Republicans are making appointments, and doing so more efficiently than Democrats did in the past.
Imagine if President Richard Nixon called a press conference while the Supreme Court was deliberating over Roe v. Wade. Imagine if Nixon, concerned that a majority of justices appeared to have fallen under the influence of the body’s far-left flank, declared, “I want to warn you, Blackmun. I want to warn you, Brennan. You are sowing the wind, you risk reaping the whirlwind. You will pay the price. You won’t know what hit you if you go forward with this awful decision.”
He would have been immediately denounced not only by Democrats but also by Republicans. And rightly so.
Even though the threat against the constitutional order then was real, Roe was not constitutional law. Indeed, it was written as a legislative enactment, creating a trimester system for abortions that had not the slightest connection to constitutional or legal principles. As such, the opinion was the epitome of a legislative compromise. And it was widely recognized as such. In the fall of 1976, less than four years after the decision, my liberal constitutional law professor explained that while he would have voted for such an outcome, he could not justify the justices’ legal reasoning.
Nevertheless, jurists are granted lifetime appointments to ensure their independence, freeing them to rule against legislators and presidents. That is frustrating, irritating, even maddening when one ends up on the losing side of a case. But such insulation is essential to the constitutional system of limited government and individual liberty.
After Roe, conservatives complained about lack of judicial accountability, often in terms similar to those used by the Left today. But none, at least that I remember, ominously threatened that errant jurists would “pay the price” and not “know what hit” them. The question was how to overturn the decision, not how to cow the justices.
Progressives appear to feel no such limitation. After all, the Left is not interested in sharing the judiciary. Imagine a legal Brezhnev Doctrine: what’s mine is mine and what’s yours is negotiable. Most judges usually were Democrats, though an occasional appointment might be allowed Republicans. Just never enough to make a meaningful difference.
Having found that it now has to share not just the judiciary but also control of the judiciary, the Left wants to change the rules. Brian Fallon of Demand Justice said, “Democrats cannot sit back and accept the status quo of a partisan Republican five-seat majority for the next 30 years.” After all, Democrats enjoyed at least loose control for 30 years. Yet progressives now act as if they only just noticed that unelected judges interfere with democratic decisions. Who knew?! So jurists must be pushed aside, marginalized, and placed under legislative control.
Schumer has inadvertently provided what could be called a “teachable moment.” Republicans should note how Democrats once defended judicial independence and how the Founders realized that the judicial branch should balance the executive and legislative branches. No political party or partisan movement is entitled to make the judiciary its own. Yet Democrats now are acting in ways that would never be accepted for Republicans. Schumer and his colleagues should be called to account.
Indeed, the GOP should seize the opportunity to encourage bipartisan reform. If neither side likes absolute, life-time independence, there are alternatives. One possibility would be easing requirements for amending the Constitution. Getting a two-thirds vote of Congress and three-quarters vote of state legislators or calling a constitutional convention is difficult, perhaps too difficult. This encourages frustrated activists to turn to judges to make changes. Simplifying the procedure might help move constitutional amendments back to normal politics.Another measure would be set limited terms for federal judges. The details don’t matter too much. Terms could be medium or long. Jurists might be eligible for reappointment. The essential point would be to end lifetime immunity while preserving legal independence. Terms also would provide for rotation, spreading out appointments. Nominations for a set term rather than for a lifetime would reduce the two parties’ stakes, lessening pressure to turn confirmation battles into political Armageddon.
Equally important, neither measure would bias judicial outcomes while addressing legitimate issues. In essence, such an approach would ensure that the judiciary is shared equitably rather than turned into a weapon for one side or the other.
Ultimately, politicians should stop asking judges to make policy decisions. Cases should be about law rather than politics. Otherwise depoliticizing the judges’ role is merely second best. Whatever is done, however, should leave the judiciary as an independent branch, free — indeed, duty-bound — to check the executive and legislature. Protecting Americans’ liberties requires no less.
Doug Bandow is a Senior Fellow at the Cato Institute. He is a former Special Assistant to President Ronald Reagan and the author of several books, including Foreign Follies: America’s New Global Empire.