In 1903, the Supreme Court decided Giles v. Harris. The case presented a straightforward problem with what should have been a straightforward solution. Jackson Giles, a black man living in Alabama, sued on behalf of 5,000 black citizens of Montgomery who, in clear violation of the Fifteenth Amendment’s prohibition of racial restrictions on the franchise, had been prevented from registering to vote.
But a straightforward solution was not forthcoming. Rather than enforce the law, Justice Oliver Wendell Holmes, writing for the Court, found a reason not to: It would be too unpopular. “The great mass of the white population intends to keep the blacks from voting,” Holmes wrote. “If the conspiracy and intent exist, a name on a piece of paper will not defeat them.” Contradicting public opinion would expose the Court’s essential powerlessness and threaten its legitimacy. Jackson Giles would not get to vote. Nor would his children.
Giles is universally regarded as a legal travesty for its abandonment of the law to the will of a racist majority. Yet today, anxiety about the Supreme Court runs in the opposite direction. As a five-justice conservative bloc takes shape with the seating of Brett Kavanaugh, liberal commentators are asking a portentous question: What will happen when the Court fails to follow the will of a progressive majority?
These commentators would seem to have good reason to worry. In her New York Times feature article “When the Supreme Court Lurches Right,” legal journalist Emily Bazelon notes that a conservative court would produce results that would be out of step with public polling on abortion, health care, corporations, and gerrymandering, which tends to show majorities for liberal positions. And when the Supreme Court falls out of step with the public, the result is a “straining of the constitutional order — and the country — to the breaking point.”
Bazelon need only cite the traumatic history of the Court in the 1930s. For decades prior, a conservative Court had been invalidating popular legislation guaranteeing safe working conditions and decent wages. During what came to be called the Lochner era, the Court believed that such regulations violated a constitutional right to freedom of contract, despite the absence of that concept from the constitutional text. When Franklin Roosevelt was elected president in 1932, he carried with him a popular mandate to unleash a massive regulatory response to the Great Depression. But the conservative Lochner court began striking down Roosevelt’s reforms.
Roosevelt’s response was to marshal his political muscle behind a plan to pack the Court. His allies in Congress drafted a bill that would empower Roosevelt to appoint up to six friendly justices, ensuring that his legislative program would survive legal challenge. But the need for the bill quickly dissipated. Recognizing that the Court’s conservative jurisprudence had become so unpopular that it was now facing a crisis of legitimacy, the Court’s justices abruptly shifted legal course and began upholding Roosevelt’s agenda. The New Deal was saved and a constitutional crisis averted by the Court’s new conformity to public opinion.
Bazelon could be forgiven for concluding that institution-altering political upheaval is the natural result when the Court refuses to bend to the will of the majority. But to come to that conclusion, she has to elide a more recent chapter in the history of Supreme Court counter-majoritarianism.
The Warren Court followed much the same template as the Lochner Court, but from the left. It occasioned a revolution in constitutional interpretation, creating new doctrines that dramatically increased the power of judges to invalidate laws — often on the basis of thin or nonexistent constitutional text. The result, as Bazelon notes, was a Court that was at odds with democratic majorities over criminal justice, the role of religion, and coercive remedies to segregation such as forced busing. Combined with the Roosevelt-era Court’s earlier decisions giving the executive branch broad powers to regulate the economy, these decisions of the Warren court produced what amounted to legal exile for conservatives. Liberalism had become so embedded in the American judiciary and legal academy that Richard Nixon’s four Supreme Court appointees simply continued the work of their predecessors and refused to rule as conservatives. The will of the majority was being frustrated — this time by progressives.
If Bazelon’s thesis is correct, the result should have been a constitutional crisis on the order of Roosevelt’s court-packing bill. But that’s not what happened. Instead of toppling institutions, conservatives resolved to play the game better, pursuing a strategy that political scientist Steven Teles describes as “countermobilization.” Beginning in the early 1980s, conservatives formed a legal movement around the principles of strict constructionism, judicial restraint, and federalism. They self-organized, countering liberal hegemony in legal academia through the Federalist Society and in public-interest law through the Institute for Justice. They enforced doctrinal discipline around textualism and originalism. And crucially, they aimed their efforts not at courts alone but also at the ballot box, working jointly with politicians and grassroots activists to accomplish the spadework of winning elections and passing laws.
The result was change without crisis — except in the eyes of suddenly insecure progressive elites who used terms such as “cabal” and “conspiracy” in describing the loss of their monopoly. The truth was that the conservative legal movement charted an alternate path for responding to judicial counter-majoritarianism, one that competed honestly within existing institutions instead of demanding constitutional rupture.
Today, it is liberals who are faced with the prospect of a hostile Court that invalidates the program of a future Democratic administration. Bazelon predicts constitutional rupture. But just how counter-majoritarian would a conservative Court be? Some of the answer depends on how the attitudes of the majority are measured. Bazelon notes that 71 percent of Americans would oppose the overturning of Roe v. Wade. But Gallup shows that a combined 53 percent of Americans believe that abortion should either be “legal only in a few circumstances” or “illegal in all circumstances.” And how many Americans understand that if Roe were overturned, abortion would be left to the states rather than banned outright?
Bazelon describes an electorate that is shifting uniformly to the left. But that’s not really true, and our best understanding of the views of the American people suggests that the work of a conservative Court would probably be a political wash. It’s true that conservative legal thinking on corporate personhood and labor law is unlikely to be popular. According to statistical analysis by political scientist Lee Drutman, a mere 27 percent of the electorate have conservative views on economics. But that same analysis shows that 52 percent of the electorate are socially conservative and that social issues tend to be more salient for voters than economics. This suggests that a conservative Court’s rulings on religious freedom, racial preferences, LGBT rights, and other social issues are likely to enjoy popular support.
Bazelon is quite correct, however, that a conservative Court’s decisions could be received with more skepticism by the Left than would the decisions of a split Court. The presence of Anthony Kennedy’s swing vote encouraged the public to view the Supreme Court as a deliberative body whose opinions were the products of reason rather than politics. On a Kennedy court, both sides could feel that they had a fair bite at the apple. But with five solid conservatives appointed by Republicans facing off against four liberals appointed by Democrats, the Left could easily view the Court’s decisions as the spoils of a political war won by the Right.
That’s certainly how Bazelon sees it. She describes conservative jurisprudence as a fig leaf that “has led conservative judges largely to positions they ideologically favor” — as if liberal justices were tribunes of objectivity, dispassionately reasoning to the conclusion that when the Constitution says “due process of law” it means “abortion access is required.” In Bazelon’s view, undoubtedly shared by much of the legal elite, only one side is doing politics. Their side is doing truth.
We describe things as “politicized” only when we don’t like the outcome. Those outcomes are what we’re really after, and if public opinion happens to align with our preferences, we gladly beat our opponents over the head with it. But when public opinion cuts against our preferences, calls for democracy stop and calls for principled stands go up. Today, the Left calls on the Court to respect the will of the majority. In 1954, when the Court in Brown v. Board ignored the will of the majority in the affected states to desegregate the Jim Crow South, it asked for the opposite. Bazelon doesn’t have a theory for when the Court should conform to public opinion and when it should reject it. But if she were to engage in some introspection, she would probably want the Court to follow public opinion when it would produce liberal results and to ignore it when it wouldn’t. In other words, do politics.
Politics are inescapable. Liberals may feel that a Court shooting down their agenda is pure politics — but a Court that sought to rule in harmony with opinion polling would be just as transparently political.
That fact leads us to an important conclusion: conformity to the majority is not the only source of the Court’s legitimacy. At least equally important is a willingness to contradict it. When that happens, it’s proof that law is distinct from will, that courts operate as a check on the popular branches, and that the Framers’ vision of a government of separated powers remains intact. Rote conformity to public opinion isn’t an antidote to politicization — it advances it, by encouraging the public to view the Court as a body whose job it is to ratify the preferences of the majority rather than check them against the Constitution.
Bazelon places the fate of the republic squarely in the hands of the Court. It will either save us, by ruling as moderates who conform to public opinion, or doom us to crisis, by ruling as conservatives standing on legal principle. According to her, our “democracy is riding on it.” Lost in the debate is that the Left also has a choice about how it responds to its loss of the Court.
One option is to delegitimize the Court, triggering constitutional rupture. That is the path favored by the numerous voices on the left calling for modern-day court-packing to block a conservative majority from issuing decisions. Court-packing is a topic of lively debate on the left, and Bazelon and many other progressives don’t necessarily favor it. But by treating a conservative Court as a threat to American democracy, they implicitly sanction that option. After all, if control of the Court is as important as they claim, one should risk much to prevent it from falling into the wrong hands.
Alternatively, the Left could accomplish its agenda by doing what conservatives once did, convincing voters and passing laws. Implicit in this path is the recognition that the Court is not the be-all-end-all of American democracy. Nor should it be. The more political importance is placed on the Court, the more likely the institution is to buckle under the pressure and lose its willingness to contradict public opinion. Progressives assume that would mean the enactment of their agenda. It could just as easily mean the return of abominations like Giles.
The Supreme Court should never be allowed to become the heart of our democracy. That must always be our democracy itself — the political process that allows voters to enact their preferences. Competing in that arena is hard. It’s especially hard if you’re used to being able to convince a friendly court to enact your agenda without troubling yourself with appealing to voters. Writing a good appellate brief is easier than winning an election. That was the Left’s position for many decades. For the first time in a generation, it will have to break the habit.
Something to Consider
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