Ending affirmative action in higher education, permitting anti-gay discrimination, and forbidding the education secretary from canceling student loan debt solidified the sorry legacy of the John Roberts Supreme Court. As both Garrett Epps and Joshua Douglas have thoroughly documented in the Washington Monthly, this is a radical Court dominated by six conservative justices willing to distort or ignore precedents to reach their desired outcomes.
After the latest jarring decisions, many progressive politicians and activists are renewing efforts to radically overhaul the Court’s structure. The Just Majority coalition of over 40 progressive groups recently completed a 23-city bus tour to promote adding seats to the Court. A separate but overlapping coalition called United for Democracy launched last month, with an ad campaign calling on Congress to “rein in the dangerous Supreme Court.” (The first ad did not offer specific remedies, but a spokesperson told NBC News that future ads might include court-packing.) Progressive members of Congress are promoting bills to expand the Court and impose term limits on the justices. Representative Alexandria Ocasio-Cortez even suggested limiting the scope of judicial review.
Anger at the Court is more than justified. However, the justices’ decisions do not justify partisan attacks on the Court’s structure. The totality of the Court’s record makes the opposite argument.
The marquee opinions of this term are terrible, as were last year’s vaporization of federal reproductive rights and absurd expansion of gun rights. They are bad for society and bad as legal scholarship. They reveal the conservative justices to be, at their core, activists, not arbiters.
And yet, rulings from this term show some of the conservative justices are not fundamentally partisan. They are determined to realize their ideological goals. They don’t care nearly as much about electing fellow Republicans.
Roberts and Brett Kavanaugh joined the Court’s liberals to reject a Republican Party congressional district map that disenfranchised African Americans. Dave Wasserman of the Cook Political Report estimated that the ruling may add four Democratic House seats next year. (A gain of five House seats would give Democrats control of the chamber.)
Amy Coney Barrett joined that heterodox coalition in a different case that rejected the “independent state legislature” theory, which MAGA supporters promoted so statehouses could ignore election results when Trump loses and send their hand-picked slates to the Electoral College.
If all Republican-appointed judges were beholden to the GOP or MAGA, such rulings would not have been handed down. Nor would the Court, with three Trump-appointed justices, have rejected all of the attempts by the 45th president to steal the 2020 election.
Sure, there’s no need to shower the conservative majority with praise for merely accepting the election results. Nevertheless, the distinction between activist and partisan justices is vital. An activist Court can make harmful rulings. A partisan Court tips elections and undermines democracy itself. Proposals to disempower an activist Court by restructuring the judiciary would be grievously unwise if the byproduct is a partisan Court.
Activist Supreme Court justices rarely engage in electoral quid pro quo because of the lifetime appointment. As Alexander Hamilton described The Judiciary Department (Federalist Papers 78): “Nothing can contribute so much to its firmness and independence as permanency in office.”
Even though the executive branch nominates judges, and the Senate confirms them, neither branch holds any sway over judges upon confirmation, save for the remote possibility of impeachment and conviction for crimes.
Granted, Hamilton’s beau ideal has often fallen short. Before his 1857 presidential inauguration, James Buchanan strategized with his friend Justice John Catron on the pending Dred Scott case. The Court was headed toward a narrow ruling. At Catron’s urging, Buchanan lobbied another for a broad ruling denying citizenship for Black Americans, enslaved or free, in the North or South, which is what the Court did.
Not content to make the “Supreme Court Justice” the last line on their resumé, several justices have eyed elective or appointed office over the decades, unfortunately giving them the incentive to remain in good standing with their political parties. Most audaciously, Republican Charles Evans Hughes stepped down from the Supreme Court in 1916 to run against the Democratic incumbent Woodrow Wilson, although he lost narrowly.
Abe Fortas didn’t eye a political appointment after Lyndon Johnson nominated him for the Court in 1965 to replace Arthur Goldberg, whom LBJ tapped as Ambassador to the United Nations. He just kept on serving as Lyndon Johnson’s adviser while on the Court. He sometimes revealed Court deliberations to LBJ and, at least once, advised the president on a pending case. Johnson tried to elevate Fortas to Chief Justice in 1968, but their unusually close relationship became an issue in the hearings, as did income Fortas received from business interests for teaching a summertime collegiate course. Republicans and conservative Democrats filibustered the nomination, and Fortas resigned from the Court the following year.
In the most egregious case of electoral meddling by the Court, five Republican appointees prevented the state of Florida from recounting the 2000 presidential election, handing the victory to the Republican nominee, George W. Bush. (Two Republican-appointed justices, John Paul Stevens and David Souter, dissented along with the Court’s two justices appointed by a Democratic president, Stephen Breyer and Ruth Bader Ginsburg.)
Such examples of political activity have prompted several commentators to argue that the Court has always been political. Yes, but only to a point. No constitutional provision can prevent imperfect humans from injecting politics into Court affairs sometimes. But these examples do not justify giving up on the independent judiciary and turning the Court into a fully politicized body. The Court’s design still frees justices to adjudicate without fear of political punishment.
Case in point: Mere months before Hughes entered the 1916 presidential race, the Court reviewed Wilson’s income tax law, the first enacted since the ratification of the 16th Amendment, which permitted an income tax. The bill cleared Congress with nearly every Republican in opposition. A lawsuit, though, argued the bill wasn’t technically covered by the new amendment and violated the Fifth Amendment’s provision prohibiting the taking of “property, without due process of law.” The Supreme Court was heavily Republican and could have delivered a huge blow to Wilson by shooting down his income tax law. But Hughes joined a unanimous decision upholding its constitutionality.
We also have plenty of examples of presidents frustrated by the rulings of their appointees.
A unanimous Court rejected Richard Nixon’s assertion of executive privilege and ordered him to turn over tape recordings of his meetings to the Watergate special counsel, even though four justices were Nixon appointees (one of whom recused himself.)
George H. W. Bush said he was “very disappointed” when Souter cast the tie-breaking vote forbidding religious prayers during public school ceremonies.
During the deliberations of Brown v. Board of Education, President Dwight Eisenhower hosted a male-only “stag dinner” that included his newly appointed Chief Justice Earl Warren and the lawyer defending the separate-but-equal doctrine for the segregated school system of South Carolina. Warren was displeased at being in the same room as the attorney. According to Warren’s memoirs, Eisenhower took him aside and said of the Southerners in the room, “These are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.” An offended Warren, the former governor of California and a running mate on a GOP ticket less than a decade earlier, concluded Ike would not embrace a decision to end separate-but-equal. But three months later, Warren did it anyway, cobbling together an unlikely unanimous ruling. (Three years later, after Warren and other Eisenhower appointees to the Court issued more unfavorable rulings, the president vented at another stag dinner that he was “practically fed up” with Warren.)
As a candidate in 2016, Trump promised to nominate Supreme Court justices who would overturn Roe v. Wade. His three picks—Barrett, Kavanaugh, and Neil Gorsuch—delivered on that promise. But they didn’t owe Trump anything, and they didn’t abet his election theft.
Barrett, Kavanaugh, and Gorsuch do not deserve praise. The constitutional design of the judiciary deserves praise. Judicial independence should not be destroyed to end the current spasm of right-wing judicial activism.
Any judicial reform enacted by using a partisan process—first abolishing the Senate filibuster on a party-line vote, then enacting measures to add Court seats or imposing term limits on federal judges—ends the independent judiciary. At that point, whenever one party controls the White House and Congress, that party can change the rules as needed to exert partisan control over the Court.
Legislation to impose judicial term limits, seemingly a more even-handed proposal than court-packing, may be tempting but risks instigating a Constitutional crisis. Set aside whether an 18-year term would insulate judges as well as a lifetime term. The fact remains that the Constitution mandates a lifetime appointment. Amending the Constitution—requiring ratification by 38 states—would necessitate bipartisan support, which would never happen for a term-limit proposal timed to weaken the power of conservatives.
The judicial term limit bills languishing in Congress try to circumvent the Constitution’s lifetime appointment provision by directing Supreme Court justices to take “senior status”—retiring from active service but available to fill in occasionally at any level of the judiciary—after 18 years. It’s a Constitutional subterfuge disguised as a gold watch.
Since the text of the Constitution looks vague to the modern eye (“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour”), term-limit advocates like Representative Ro Khanna urge creative interpretation. The California Democrat has said, “The lifetime appointment does not have to be to the Supreme Court, and it can return to a circuit court after someone completes their 18-year term.” But this logic makes a mockery of Federalist 78. Should Congress curtail the justices’ terms, it would be challenged and appealed, likely forcing the Court to rule on itself.
To end the right-wing activist era requires patience. Democrats are awed at the Republican “long game” to shape the Court. Conservatives did so by railing against liberal “activist judges” for decades, elevating the necessity of installing conservative judges to Republican base voters, honing their vetting skills to avoid Souters and Warrens, and demanding specific names when vacancies arose.
The John Birch Society, founded in 1958, was named after a missionary killed in “Red China,” but it was best known for its campaign to “Impeach Earl Warren” over Brown and other rulings. The Federalist Society, founded in 1982, nurtured conservative lawyers and created a legal army to fill Republican administrations and federal courts. When the second President Bush nominated White House counsel Harriet Miers to the Court in 2005, activists were skeptical of her conservative bona fides. Under pressure, Miers withdrew, and Bush appeased the right-wing mob by turning to Samuel Alito.
Trump wooed evangelicals in his 2016 campaign by publishing a list of stout-hearted conservatives and vowed only to nominate those who appeared on it. At the same time, then-Senate Majority Leader Mitch McConnell refused to allow President Barack Obama to fill the Court vacancy that opened when Justice Antonin Scalia died in February 2016.
Enraged Democrats began referring to the “stolen” seat, but the hard truth is McConnell couldn’t steal it without accomplices: the voters. Granted, Trump won the Electoral College without winning the popular vote. But swing state voters did not punish many Republican senators who were in on the caper. Incumbents in New Hampshire and Illinois did fall, yet Pennsylvania’s Pat Toomey, Wisconsin’s Ron Johnson, Florida’s Marco Rubio, and North Carolina’s Richard Burr won. Republican voters at the time cared about the Court more than Democratic and swing voters.
Republicans have held the majority of Supreme Court appointments since 1970, but their determination to appoint ideologues has waxed and waned over the past six decades. Many landmark liberal rulings were handed down over this span, including Roe, which three Nixon appointees backed and one authored. It took 47 years after Roe, and 66 years after Brown, for conservatives to secure the current activist Court.
Hopefully, Democrats won’t need such fortitude to rebalance the bench. Clarence Thomas is 75, and Alito is 73. The way to end the activist frenzy of the Roberts Court is for Democrats to hold the White House and the Senate when justices’ seats become available. To do so, they should weave a narrative for voters about how activist judges are making us less prosperous (making it easier for corporations to fleece workers and consumers), less safe (loosening gun laws), less fair (turning a blind eye to discrimination), and less free (eliminating abortion rights). Voters need a reason to prioritize the judiciary when deciding their votes.
Soon after this term ended in June, Joe Biden declared, “This is not a normal Court.” He also cautioned, “I think if we start the process of trying to expand the court, we’re going to politicize it, maybe forever, in a way that is not healthy.” That may seem paradoxical, but he’s right on both counts.
Democrats should pound the narrative that this is a rogue Court and prioritize a balanced judiciary in their Election Day messaging. They should also rally behind new Senate legislation establishing a code of conduct for the justices, highlighting recent revelations about Thomas’s and Alito’s failure to disclose gifts from plutocrats with business before the Court, as well as the chief justice’s wife making millions as a recruiter of leading lawyers, many of whom appear before her husband and his court. Democrats should not turn on each other or Biden. They have largely avoided the circular firing squad during the last few years and shouldn’t start now. The famed long game is the way to go.
