Restoring Our Court

The end of another Supreme Court term has come and gone, and as usual, the Court has left destruction in its wake. Two years ago in Dobbs v. Jackson Women's Health Organization, the Court overturned Roe v. Wade and abolished the constitutional right to abortion. Last year, affirmative action got the axe in Students for Fair Admission v. Harvard. This year, meanwhile, the Court overruled Chevron v. National Resources Defense Council, continuing its crusade against the administrative state. And that wasn’t even the showstopper: that was yesterday’s decision in Trump v. United States, holding that presidents have absolute immunity from criminal prosecution for their official acts and effectively placing Donald Trump above the law.

This is hardly the first time the Court has courted controversy. But there is something a bit different this time: the Court is actually losing the public's confidence. For the first time since Franklin Roosevelt's ill-fated “court-packing” scheme in 1937 there is a real political appetite for radical action against the Court of one form or another, to the extent that President Biden, himself a consummate institutionalist, appointed a commission to consider the question of court reform. So far none of this has led anywhere, and it is not likely to unless the balance of power in Washington changes dramatically. But as the Court continues its march through constitutional law each June, the topic will rise to our collective attention again and again.

The debate around court reform largely breaks down into two schools of thought. On the one hand there are the institutionalists, who stress the importance of judicial independence and therefore oppose major court reform. On the other hand, the radicals who support reform are likely to question how much value an institution like the Supreme Court has in the first place. They see judicial review as an undemocratic institution, one that is not even truly authorized by the Constitution, and one that has been overwhelmingly a force for ill rather than good throughout the nation's history. My view, however, is orthogonal to this familiar axis: judicial review is essential to our democracy, and that is why court reform is so important. Accordingly, a proper appreciation of the importance of judicial review must shape whatever reform liberals ultimately support. The goal must be a restoration, not a demolition.

Let's start with the legal question: does the Constitution even authorize the practice of judicial review? Skeptics from Alexander Bickel in The Least Dangerous Branch (1962) to Ryan Cooper in the American Prospect two years ago often say that Marbury v. Madison, the (utterly fascinating) 1803 case in which the Court first struck down an act of Congress, “created” or “claimed” the power of judicial review. This is a myth. Marbury’s reasoning is legally sound: both proponents and opponents of the Constitution understood during the ratification debate that the courts would have this power, and this understanding is clearly if not explicitly reflected in the constitutional text.

But why? Why would the Constitution create such an institution? More to the point, is it worth preserving, or should We, the People act in our time to rid ourselves of an antiquated and antidemocratic relic? Much has been said on both sides of this question over the years. The most compelling, in my view, comes from a 1960 book called The People and the Court by law professor Charles Black. Writing amidst the firestorm of controversy kicked off by Brown v. Board of Education Black focused on something that oft goes unnoticed: the work the Court does in maintaining the legitimacy of the government as a whole. It is, he argued, the only viable solution to a problem that necessarily confronts any government of limited power such as ours: there will be persistent doubt as to the validity of the government's measures. People who are subject to federal legislation will often think, reasonably enough, that the laws in question exceeded Congress's authority under the Constitution and are hence invalid. If these doubts are allowed to linger, if there is no mechanism for resolving them to the general satisfaction of the populace, then in time virtually everyone will be subjected to some exercise of power they deem unlawful. And this state of affairs cannot help but erode confidence in the government as a whole.

There is only one way out of this trap, Black argued. (Well, only one way short of abandoning the notion of limited government powers, at least. There is nothing wrong with that, necessarily; Britain has typically done without any such notion, and Liberal Currents’ own Adam Gurri has written in favor of parliamentary supremacy. But the idea of limited government authority is absolutely central to the American political tradition. Giving it up would be a truly radical change to our communal life.) What we need is some way of resolving these disputes that allows the losing party—for there must always be a losing party; a law must either go into effect or not—to feel some measure of satisfaction. We want them to be able to feel that, although they still disagree with the result reached (again, we cannot wish away the problem of reasonable disagreement), they trust that the government has done all that it could reasonably have done to ensure that it stays within the scope of its lawful powers. This means giving those who contend they have been subjected to unlawful authority a receptive forum in which to press their claims. 

This forum cannot simply be mass electoral politics. Although it is (ideally) done at their behest and in their name, the function of constitutional review is one the People cannot perform for themselves, no more than they could perform the other functions of government themselves. This is not only because the work is technical, and it is not only because the People are in no position to devote their attention to thousands of claims each year. It is also because, as Black emphasized, the very system of limited government power is an instrument of popular self-restraint. It is meant not only to check the ambitions of government but those of the People themselves, to reserve a zone within which the individual is not subject to the power of the community. Thus, the body that is to enforce those limits must stand impartially between the community, as represented by the legislative and executive branches, and the individual. This means a tribunal—a court, you might say—part of the government but relatively independent from the other branches, as it must be if its judgments are to augment the legitimacy of their actions. The tribunal should insofar as is possible not be in the business of initiating forcible coercion of private citizens, since it is those coercive acts that need legitimating and the tribunal cannot be expected to review its own actions impartially. Finally, the tribunal must be able, when it judges that a government act was in fact ultra vires, to invalidate that act: otherwise the whole enterprise will be no more than a grotesque farce that would only serve to highlight government illegitimacy. 

With such a forum in place, those measures that do go into effect bear a measure of validation. They have been put to the test, or—as will be true in the great majority of cases where constitutional challenge is never brought—at least could have been put to the test. A fair and impartial tribunal, receptive to claims of government overreach, was given every opportunity to strike them down, and declined to do so. With such a system in place, people may be able to feel that, although they may disagree with the tribunal's decisions in this case or that, on the whole the government has acted in good faith. Mindful of the nature of the very problem we have been discussing, they may be able to feel that no system could be put in place which would have given their own objections any greater chance of success. And this may be enough to maintain general confidence in the government as a whole. Black is careful to note that this is not an exact science, and this solution is by no means guaranteed to work. But it is, he contends, the only one with a possibility of success. And “in our history, it did work, in sufficient measure.”

This is how I understand the function of judicial review in our system of government. Its job, and that of the courts as a whole, is to provide a fair tribunal where controversies about the extent of government power may be litigated and resolved, so that the people have some reason to feel confident in the general lawfulness of their government. Successful performance of this function does not require that every, or even most of the highest-profile, most politically charged cases be correctly decided, in my view or yours or that of the general public or the legal commentariat. For the function is not principally about those cases; it is not even principally about the cases that get litigated as a whole. The vast reservoir of cases in which either a law is never challenged, because no one seriously disputes its validity, or in which a law is never passed in the first place because any who might have supported it know full well it would have been struck down in court, are every bit as important. The legitimating work of judicial review, in other words, is largely unseen, but it is no less important for that.

And it is exactly this work which the current Court is incapable of performing. For while this work does not require that the people agree with the Court's decisions, it does absolutely require that they maintain confidence in the Court itself. Confidence in its integrity, in its independence from the other branches of government, in its dedication to deciding according to law and impartial justice. I need scarcely recount here all the reasons the Court has given us of late to lose this confidence. What does perhaps bear mentioning is that the central mechanism our system provides for the People to actively maintain confidence in their judiciary is the appointment process. Though they act indirectly, via their chosen presidents and senators, rather than through direct election, it is nonetheless meant to be the People who are ultimately responsible for choosing judges. 

And there are a number of reasons to feel that this link between the People and their Court has broken down in recent years. Two of the Justices (Thomas and Kavanaugh) arguably perjured themselves to secure confirmation. And I have always felt that, over the sequence of events from the Senate's refusal to consider Merrick Garland's nomination in 2016 through the lightning-quick confirmation of Amy Coney Barrett in advance of the 2020 election, the Court's composition became warped by the principle that Democrats can never legitimately exercise power or authority of any kind whatsoever. When the Senate rejected Garland, that is to say, it was not giving President Barack Obama “advice” about who he ought to put on the Court; rather it was asserting, spuriously, that he had no right to put anyone on the Court. That it unquestionably acted within the scope of its legal powers is beside the point here; what matters is that the public has been given reason to doubt that these nine people are really truly the ones commissioned by the People to perform the sensitive business of judicial review. The simple fact is that a majority of the Court was confirmed by the votes of Senators representing a minority of the populace, and a (different) majority was appointed by presidents who received fewer votes than their opponent in their initial election to the office. Oh, and three Justices were appointed by Donald Trump, a convicted felon who procured his office through criminality and the corrupt aid of a foreign tyrant.

What this all adds up to is a crisis of legitimacy. The function of judicial review relies essentially on our ability to say, after the Court has resolved a constitutional case, that everything that could reasonably be done to give the losing side a fair hearing has been done. Merely to ask whether we can say this today is to invite laughter in response. Do the women whose right to abortion the Court terminated in Dobbs have any reason to feel this way? Do the victims of gun crimes committed with the aid of the Court's Second Amendment jurisprudence? Do any of us have any reason to feel this way about Trump v. United States? No. Of course not. We feel, and we have good reason to feel, that the game is rigged, that the fix is in, that the faction working to end democracy in America has captured the Court and that the legal merits simply don't matter in politically charged cases. We feel, in short, that the vital function of judicial review itself has been usurped. And the usurpers feel so secure in their power that they laugh in our faces, writing sloppy, amateurish reasoning into law because they know they needn’t bother with anything better.

This state of affairs is untenable. If it is allowed to endure, popular faith in the entire government will unravel; I think we can already feel this starting to happen. The rot simply cannot be contained. Five years ago in Rucho v. Common Cause the Court held that the federal Constitution places effectively no limits on the practice of partisan gerrymandering. Thus the Court has played a role in determining the very composition both of the national House of Representatives and of every state legislature. If the Court’s legitimacy cannot be relied upon, then arguably neither can the legitimacy of any piece of legislation adopted anywhere in the country in the last five years. This, to my mind, is what court reform must seek to redress. The goal cannot simply be to destroy the Supreme Court, although this particular Supreme Court surely must be brought to heel. Rather the goal must be to restore a state of affairs in which every American can feel an easy confidence that the Court will be fair and receptive to constitutional claims made from all quarters, a state of affairs in which we know that, while we may disagree with their decisions, these are the people we chose for the task.

What will it take to achieve this goal? It is important to be clear that the neutral, technocratic reforms endorsed by President Biden’s commission are not enough. What’s stopping the Court from performing its core function of legitimation is not really anything about the design of Article III. The problem, rather, is that this function has been usurped. Permanent structural reforms designed to defend against future usurpation, such as providing fixed term lengths for Supreme Court Justices and regularly-spaced appointments, are all very well and good. But our response cannot be complete unless it involves taking control of the Court back from the usurpers. Constitutionally speaking, this means expanding the Court, which unlike the aforementioned structural reforms can unquestionably be done without constitutional amendment. Four new liberal Justices would flip control of the Court away from the conservative faction, and could be seen as effectively “canceling out” two of Trump’s appointments. At the same time, however, we should not welcome a situation in which the governing party in Washington routinely adds new Justices to gain control of the Court, neutralizing it as an independent branch of government much as the British House of Lords was neutralized in the nineteenth century. This is where those longer-term structural reforms come into play. To complement adding four Justices as an emergency, counter-usurpation measure, I might suggest an amendment that would see the size of the Court shrink back down to nine by attrition, and then provide for fixed eighteen-year terms thereafter. (There are other worthy subconstitutional reforms; I would support taking control of the Court’s docket away from the Justices themselves, for example. But those are more routine issues that do not really go to the heart of the present crisis.)

To be sure, restoring the Court’s legitimacy will not be easy. It may not even be possible so long as a significant faction of the public continues to support Donald Trump and his anticonstitutional, fascistic agenda, for the measures necessary to restore Democrats’ faith in the Court will only enrage Republicans in equal measure. (Indeed, since the Constitution as it stands gives Republicans disproportionate political power, reforming the courts may first require a broader constitutional reformation—a topic on which I have quite a bit to say, but perhaps another time…) I do think, however, that a court reform movement whose goal is a restoration of a legitimate judiciary will likely have an easier time appealing to moderate skeptics than one seeking to burn judicial review to the ground and salt the earth. More importantly, the former is what the enduring success of the American project requires.

Featured Image is Former county courthouse and jail in Hillsboro, NM, by Pi3.124