Washington is convulsed by politics these days. The presidential election is less than a year away. The House is moving forward on impeaching President Donald Trump. And there is widespread preparation for a possible Supreme Court confirmation battle.
Of course, the last is largely hidden from public view, since there is no vacancy … yet. It is morbid but inevitable business: across the spectrum, officials and activists alike are considering the likely progression of pancreatic cancer in Associate Supreme Court Justice Ruth Bader Ginsburg. No one wishes her ill, but an election-year nomination would trigger an extraordinarily bitter, high-stakes battle. So everyone wants to be ready.
Long committed to result-oriented jurisprudence, the Left fears that it faces payback from conservative jurists after years of unconstitutional judicial activism. AlterNet’s Jake Johnson warned that “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.” Just like the lefties did who long dominated the federal bench. But they now fear the end is nigh!
Progressive activists are pushing for “reform,” which means filling the courts with robed legislators. Emma Janger of the People’s Parity Project argued, “Without a meaningful plan for court reform any presidential attempts to make needed change will simply be blocked by the courts.” Listen to progressive activists and you hear an echo of Teddy Roosevelt’s famous declaration at the 1912 Republican Party convention that “We stand at Armageddon, and we battle for the Lord.” Yet it is the Left that long ago politicized the judiciary, hijacking the legal process and turning court appointments into brutal political battles.
As originally conceived, the judicial role was important. Alexander Hamilton explained in Federalist No. 78,
The independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effect of those ill humors, which the arts of designing men, or the influence of particular conjunctures [circumstances], sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.
Nevertheless, the Supreme Court was the least influential branch. Appointments were viewed more as a burden than an honor. The president administered, and Congress legislated. There wasn’t that much for the court to oversee, even after it claimed the right of final review. There simply wasn’t much for justices to do. The first Supreme Court justice, John Jay, quit to run for New York governor.
The judiciary became more important once politicians began to embrace collectivism. First during the Progressive Era and more fully during the early years of the New Deal, the courts sought to vindicate the Constitution by overturning legislation which exceeded government’s constitutional authority. This set off liberal outrage over the supposed attack on and violation of democratic principles. How dare unelected appointees stand in the way of the people’s representatives!
But Franklin Delano Roosevelt’s threat to “pack” the court resulted in the infamous “switch in time that saved nine.” The actuarial tables eventually gave him nine Supreme Court appointments and control of the Supreme Court. Resistance to legislation other than that arguably running afoul of the Bill of Rights essentially disappeared. The original constitutional scheme was dramatically altered without formal amendment.
Worse was to come, however. Modern liberalism advanced faster within the legal profession than the general population, leading to the highly activistic Warren Court. Even after Chief Justice Earl Warren, who was appointed in 1953, had been replaced by Warren Burger, the judiciary continued its radical romp, highlighted by Roe v. Wade, the infamous case legalizing abortion.
Seven justices peered into each other’s eyes and spied constitutional permutations and emanations, which created a heretofore-undiscovered “right” to abortion. Unknowingly, those who drafted, approved, and ratified the Constitution created a mandate that overturned the laws of every state and provided a putative mother with the absolute “right” to terminate her baby. The ruling was viewed as extreme at the time, not even genuine constitutional law, since its relation to the constitutional text was minimal. Serious liberals such as Yale Law School’s John Hart Ely were sympathetic to Roe on substance but critical on process. The justices traded their deliberative role in judicial chambers for the partisan combat of legislative bodies.
Conservative anger at such rulings boiled over. House Minority Leader Gerald Ford pushed an effort to impeach Earl Warren. Activist attorneys and think tanks proposed countermeasures, such as stripping the Supreme Court of jurisdiction over issues.
Right-leaning scholars promoted the judicial philosophy of “original intent.” There were differences in nuance — exactly whose intent was decisive, and how was it measured? Nevertheless, the meaning given to provisions should reflect the broad political compromise at the time. If folks today want to change the Constitution’s meaning, they should change the text. That was their job, not that of a handful of jurists acting as a continuing constitutional convention with absolute, unreviewable power.
The Reagan administration made judicial appointments accordingly. But its efforts were hampered by candidate Reagan’s promise to appoint a woman (Sandra Day O’Connor may have been the most conservative female candidate available, but she was not particularly conservative) and Anthony Kennedy (a desperation choice after the defeat of a conservative nominee and withdrawal of a more libertarian choice).
The Left recognized the inherent jurisprudential weakness of its effort to make judges act as politicians. If courts could make it up as they went along, anything goes — which makes coherent judicial principles impossible. So much effort was put into justifying the “living” constitution, which meant that progressive judges were entitled to … make it up as they went along, but to do so seemingly as part of an overarching doctrine rather than self-serving preference.
Even after multiple GOP appointments the high court remained activist: William Brennan, Harry Blackmun, John Paul Stevens, and David Souter almost immediately went over to the Dark Side. All would have been credible appointments by Democratic presidents. Burger, O’Connor, and Kennedy all tended to accept the general thrust of activist jurisprudence, though resisting its most extreme advance.
So long as the Left still won cases and Democratic presidents were able to add activists to the Supreme Court, progressives accepted the legitimacy of the judiciary. Some district and appellate courts — such as the fabled Ninth Circuit — remained left-wing bastions. With Hillary Clinton seemingly poised to deliver the death blow to conservative judicial hopes, replacing originalist architect Antonin Scalia with the nominee of her choice, what wasn’t to like about judicial review and overruling democracy?
What a difference a couple of years make. President Donald Trump reclaimed — or in Democratic parlance, “stole” — the Scalia seat with the more libertarian-minded Neil Gorsuch. Then Trump replaced a squishy Kennedy with a more serious conservative, Brett Kavanaugh. (Sen. Elizabeth Warren argued that the president also poached this seat when the Senate eliminated the filibuster from presidential nominations, even though in 2011, Harry Reid’s Democrats began that process, eliminating the filibuster for district and appellate nominations.) Now, still within a single presidential term, the judicial coup de grace looms. It is the progressive icon who might be replaced by a virtual opposite, significantly shifting the balance of the Supreme Court. Plus the 170-plus district and circuit court Trump appointments so far. This means that … unelected judges might preempt Democratic decisions of the people! Who would have imagined?
This is a terrible crisis! Judges not being on their side! Judges ruling against them! Judges slowing or halting the inevitable progressive revolution and coming utopia! The New York Times columnist Jamelle Bouie warned, “A president supported by a minority of voters may shackle future majorities for decades to come.” He sounds a lot like frustrated conservatives who suffered through rule by activist jurists from the 1960s to 1980s and later. Indeed, Bouie is outraged by what liberals — er, progressives, sorry — once held to be a truism: “What lies over the horizon isn’t just a fight over the meaning of the Constitution; it’s a fight over the power to interpret it. Right now, it appears that power rests with the Supreme Court.” He noted that prior presidents resisted that perspective, including Abraham Lincoln and Andrew Jackson. Andrew Jackson, the terrible racist, genocidal populist? Yup. Bouie contended that the people must reclaim “ultimate interpretive authority” from the Supreme Court.
Democrats once complained about Republican “litmus tests” on abortion for judicial appointees. Now, they treat Roe as the essential precedent, which any nominee must affirm. Washington State governor and brief presidential candidate Jay Inslee declared, “I’m open to any idea that can make sure a woman’s right of choice is protected.” New York magazine’s Ed Kilgore complained that Trump “broke every taboo by explicitly promising conservative Evangelicals a SCOTUS that would abolish a federal constitutional right to choose abortion.” Party activists and elites are even working overtime to purge the Democratic congressional caucus of anyone less than pure on Roe.
More broadly, Democratic presidential candidates and left-wing activists alike are debating proposals to destroy the traditional judicial independence. Most of the ideas center around court-packing. Add seats to the Supreme Court, maybe a lot of them, and fill them with wannabe legislators. A law degree might be helpful. But the main qualification would be the belief that the Constitution requires implementation of the latest progressive agenda.
There are other ideas. Warren promised to appoint a worker-advocate, which presumably means someone who reads the Constitution ideologically rather than legally, creates accountability measures such as fast-tracking judicial impeachment (which the Constitution — remember that document? — leaves to the House), and adds appellate judges to Supreme Court cases (not sure how that would work). Mayor Pete Buttigieg proposed an odd system with five Democrats, five Republicans, and five “nonpolitical” jurists chosen by the others.
The one sensible idea is term limits. The details are negotiable. Imagine nominating judges to serve, say, eight-year or 18-year terms. Stagger appointments so every president gets a couple, unless illness or accident upsets the process. Even then, service would be for the rest of the term, with reappointment possible.
This would offer several important advantages: judges would still be insulated from direct political pressure, court diversity would increase, “bad” appointees would not serve for life, and individual nominations would be less important and thus less worth a fight to the political death. Both parties would have reason to back such an approach. Most important, though, the judiciary would remain free to fulfill its originally intended role: an independent branch of government intended to balance and check the other two.
But this won’t satisfy many on the left. Of course, everything is the GOP’s fault, since “their own efforts to pack the courts with ideologues have broken the system,” as Kilgore argued. Uh, how many conservatives and libertarians, let alone Republicans, did Barack Obama appoint? How many would Hillary Clinton have chosen? Republicans used the same system that Democrats used for years.
It actually comes down to political power. Brian Fallon of Demand Justice was refreshingly frank: “Democrats cannot sit back and accept the status quo of a partisan Republican five-seat majority for the next 30 years.” He said, “We don’t consider those two seats that Trump has filled to be legitimate.” Ian Millhiser of ThinkProgress argued, “If the Supreme Court’s current majority is committed to one-party rule, then Congress must create a new majority on the Supreme Court that will return power to the voters.”
Of course, the definition of being “committed to one-party rule” is deciding contrary to Democratic preferences on controversial legislation such as the Voting Rights Act. Millhiser explained,
If the Supreme Court goes down this road, and it is more likely than not that it will, this assault on voting rights will not happen in isolation. With Kavanaugh on the Court, Roe v. Wade is doomed. Religious conservatives will most likely gain even more rights to discriminate. Laws protecting workers from rapacious employers could be watered down to nothing. And any major legislation signed by a Democratic President is in serious jeopardy for the foreseeable future.
It is a daunting list, but one without much connection either to law or the Constitution, which are areas where Roe fails. In fact, that case already has been altered, though only incrementally over the years. Nor is a radical majority likely. Chief Justice John Roberts has been particularly reluctant to overturn signal legislative initiatives, such as Obamacare, which he saved by using a taxation argument largely dismissed by the legal community.
The majority never likes to be checked by the minority. But the only guarantee of essential but sometimes unpopular rights is often the courts. Millhiser suggested that everything would be okay if the threat of court-packing caused the court to moderate, meaning again make it all up when the zeitgeist struck. Or if Republicans joined to support “a constitutional amendment depoliticizing the judicial selection process,” whatever that means. After all, Democrats have been no less partisan than Republicans when appointing Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and a crowd of progressives before them.
The fastest, surest way to destroy the judicial branch is for a partisan Democratic takeover by manipulating the process. That would trigger a race to the bottom: Republicans would have little choice but to respond in kind. Indeed, they might expand the process, adding extra circuit and district court judges, as well.
At least Millhiser admitted, “Court-packing is a dangerous tactic, though. If either party resorts to court-packing, they risk destroying the legitimacy of the judiciary.” Or there might be a return to the 1960s, with Republican campaigns to oust hyper-interventionists and remove court jurisdiction over anything that matters. Progressives then might ruefully remember why they once believed in the judiciary as a bulwark against government abuse. The Spectator’s Dov Fischer warned, “As soon as people begin to perceive that judges are not following pre-established and properly enacted rules of the game but instead simply are ‘making up rules they personally prefer,’ the entire system of justice collapses.”
The Senate Democratic caucus already is enjoying payback for previous decisions. Democrats filibustered eminently qualified judicial nominees by President George W. Bush. A compromise was reached that avoided a challenge to the filibuster itself. But when GOP legislators filibustered President Barack Obama’s court nominees, the Democratic majority eliminated the practice for district and appellate nominees. Democrats sought to filibuster Gorsuch, President Donald Trump’s first Supreme Court nominee, so the GOP eliminated the practice for high court nominees as well — an inevitable decision, since the filibuster is sustainable only if both sides respect it. Sen. Jon Tester (D-Mont.) now admits that his 2011 vote to eliminate the filibuster was “probably the biggest mistake I ever made.”
Both Republicans and Democrats have poor records defending the role of an independent judiciary when decisions seem to go against them. In the 1960s, conservatives ignored the importance of judicial review when they sought to hamstring judges. A half-century later, many liberals have become unbridled majoritarians, abandoning the tool they once believed to be essential for defending individuals against the overweening state. Perhaps this should come as no surprise. These days the Left rarely even pretends to have any interest in freedom. If liberty isn’t important, who needs independent judges?
Those on the left should ask themselves, however, if the democracy-dependent courts that they now desire would have issued Brown v. Board of Education, which finally overturned the infamous decision enshrining segregation, Plessy v. Ferguson. Would any of the civil libertarian decisions celebrated by the Left have received a majority court vote and survived the popular backlash? Free speech almost certainly would have been sharply curtailed years or decades ago.
Progressives should listen to their better angels. It was Democrats who blocked President Franklin Delano Roosevelt’s infamous court-packing plan. Historian Michael Parrish wrote that the initiative “divided the New Deal coalition, squandered the political advantage Roosevelt had gained in the 1936 elections, and gave fresh ammunition to those who accused him of dictatorship, tyranny, and fascism.”
Some modern Democrats express similar concerns. For instance, Sen. Michael Bennet warned against joining “in that demolition” of the judicial appointment process by Republicans. Sen. Cory Booker worried that retaliatory court-packing could result in a grandchild asking, “Hey, Granddad, why are there 121 people on the Supreme Court?” And the Left’s celebrated judicial standard-bearer, Ruth Bader Ginsburg, warned that mass appointments “would make the court look partisan. It would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’ ” She said that even though she has lost influence as the Trump appointees took their seats.
Millhiser admitted that “while the price of court-packing is high, the price of failing to rein in a rogue Supreme Court could potentially be even higher.” Presumably Jerry Ford and many GOP legislators agreed with that sentiment a half century ago. Both sides underestimated the risk to liberty, captured by that famous, if overly quoted, scene from A Man for All Seasons, in which Thomas More warns that “This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down … do you really think you could stand upright in the winds that would blow then?”
Will an independent judiciary survive? Warren declared, “It’s not about the expansion, it’s about depoliticizing the Supreme Court.” But the Left has shamelessly politicized the courts for decades. Despite their charming rhetoric about protecting democracy, left-wing activists are most frustrated because the American people continue to resist plans for a socialist, gender-free, PC paradise. That is what Roe was all about, turning the court into a small-scale legislature controlled by the Left. Democrats fear that in the future they will be unable to rely on the courts to impose policies resisted by the American people.
The only way to depoliticize the courts is to stop demanding that they decide political and partisan rather than legal and constitutional disputes. If the Democratic Party wants to expand state power, it should strive to convince the American people. And if Democrats want to end constitutional restrictions on expansive government, they should amend the Constitution. Not use judges to subvert the legal order.
Doug Bandow is a Senior Fellow at the Cato Institute. He is a former special assistant to President Ronald Reagan and graduate of Stanford Law School. He is a member of the California and D.C. bars.