he American left is understandably angry and alarmed at the prospect of the right securing a solid majority on the Supreme Court for the next generation. That this majority is largely a product of Mitch McConnell’s norm-shredding thuggishness and the counter-majoritarian vagaries of the Electoral College only makes it more galling.
The most self-defeating proposal making the rounds on the left advocates a return to one of the most asinine ideas in American political history — FDR’s effort to “pack” the court with sympathetic justices by adding to the total number of seats and appointing liberals to them. The problem with this scheme, quite obviously, is that once one party packs the court, the other party is bound to do the same the next time it gains power, producing an institution that would quickly come to resemble a third house of Congress with dozens of justices and no legitimacy at all. In no time, red states would refuse to abide by Supreme Court rulings favored by liberals, while blue states would do the same with conservative rulings, leaving the institution in tatters.
If the ultimate goal is to eviscerate the Supreme Court, then initiating this kind of death spiral makes a kind of perverse sense. But the left would be foolish to go down that path.
Beginning with Marbury v. Madison — the landmark 1803 decision that established the principle of judicial review, giving the Supreme Court the final say in constitutional disputes — the court has played a crucial second-order role in our political system. Whereas Congress and the presidency pass and execute laws and regulations, drawing their authority to do so from the results of various forms of democratic election, Supreme Court justices get to determine which rules of the political game are constitutionally acceptable, and they do so with very little democratic accountability.
Note, though, that “very little” isn’t none. Supreme Court justices aren’t elected, and they have lifetime terms. But which party gets to place a justice on the court is primarily a function of which party wins the presidency and control of the Senate. (Luck also plays a large role, since seats open up only when a justice dies or retires.) This immense power to overturn democratic will, combined with limited but real (if indirect) democratic say in who gets to wield it, has led to ideologically oscillating cries of frustration and fury against the court down through the decades and centuries.
From the Dred Scott decision of 1857, which helped to precipitate the Civil War, to Plessy v. Ferguson (1896), which entrenched the Jim Crow system of racial segregation in the South, and the series of decisions against the New Deal that inspired FDR’s misbegotten court-packing scheme in the mid-1930s, conservatives tended to prevail on the court, angering generations of progressives, liberals, and other reformers of the left.
This began to change with FDR’s appointments and reached an apex with the Warren and Burger courts during the 1950s, ’60s, and ’70s, when liberalism ruled the day on the Supreme Court no less than in America’s political culture as a whole.
The pendulum began to swing back again once Ronald Reagan made his first nominations to the court and Warren Burger was succeeded by conservative William Rehnquist as chief justice in 1986. But on several of the most polarizing issues, the shift has been slow. So slow, in fact, that by 1996 the pro-life faction of the conservative movement had begun to talk about a possible “end of democracy” in the United States, as the democratic will of the country’s Judeo-Christian majority, reflected in 12 years of Republican presidential election victories and six nominations to the high court, had failed to produce a reversal of ideological direction on social issues (especially abortion).
Nineteen years later, Justice Anthony Kennedy (a Reagan appointee) authored the 5-4 majority opinion in Obergefell v. Hodges, which declared same-sex marriage a constitutional right and overturned laws upholding traditional marriage in states across the country. For the right, this was just the latest in a long line of decisions that displayed outright contempt for social-conservative public opinion and a willingness to substitute the ideological fiat of Supreme Court justices for democratically enacted laws.
In other areas of the law — voting rights, gun rights, campaign finance — the court has moved right more quickly and fully, producing a growing chorus of outcries from the left. But only with President Trump’s nomination of Brett Kavanaugh to succeed the retiring Justice Kennedy, with the constitutional basis of women’s reproductive rights hanging in the balance, has it become common for analysts and activists on the left to begin echoing the right’s longstanding charge of incipient judicial tyranny.
There’s a very good reason why the left has so far been hesitant to go down that road. From Brown v. Board of Education on through Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey, Lawrence v. Texas, and Obergefell, the Supreme Court has handed liberals victories that are far more sweeping and absolute than they would likely have enjoyed had they attempted to win majority support in the population at large for their preferred policies. The Supreme Court has benefitted liberals enormously.
That’s what makes today’s (perhaps short-lived) liberal hostility to the Supreme Court so bizarre. For decades, the left has warned about the dire consequences likely to follow from the overturning of Roe, Casey, and other decisions that have constitutionalized aspects of social liberalism. Those warnings carried force because the breadth and depth of democratic support for such liberalism was (and is) far from clear. Yet in anticipation of a conservative majority on the court reversing these landmark decisions, some have decided to make a virtue of this potential catastrophe by insisting that, actually, placing bedrock constitutional rights up for a democratic vote would be a splendid idea — presumably because it would make their foundation more secure and legitimate.
That’s true — but only if these policies prevail in the court of public opinion. Let’s just say that in a country that just two years ago elevated Donald Trump to the White House while also handing both houses of Congress and a substantial majority of state houses to Republicans, it’s highly uncertain that they will. (If a positive outcome of such a battle for women’s rights was obvious, liberals would presumably have an easier time of winning elections and thereby placing unapologetic liberals on the Supreme Court — rendering the whole debate moot.)
If Roe and Casey are overturned by a newly minted socially conservative majority on the Supreme Court, liberals will need to fight a host of new battles in the democratic arena. That may ultimately lead to outcomes the left can cheer. But let’s not delude ourselves into believing that it’s better to be forced to fight for fundamental rights than to have them recognized by the nation’s highest court as constitutionally inviolable.
Sometimes it’s just better to win.