When Joe Biden finally answered, after several weeks of hemming and hawing, whether he would indulge the recently revived left-wing fantasy of adding justices to the Supreme Court, it was revealing. And not simply in the way that his response — “to put together a national . . . bipartisan commission” some months after Election Day — betrayed his decades as a political creature. (Have a problem? Form a “commission.”) For although this response has come to be seen as a kind of demurral, Biden still maintained that the Supreme Court was “out of whack.”
This is, in essence, the same belief held by others on the left, amplified during the confirmation of Amy Coney Barrett to the Supreme Court. Here as in other things, Biden seems to differ from the left primarily tactically, sharing many of its ends but aware that some of them — and some of its preferred means, such as Court-packing — are unpopular. But there remains the shared contention that what President Trump and Senate majority leader Mitch McConnell have accomplished in placing three “conservative” appointees on the Supreme Court in one presidential term remains somehow illegitimate.
Superficially, this almost certainly proceeds from a sense on the left that they got played. Ignoring arguments of precedent, and the fact that, while McConnell undoubtedly played hardball, he did so well within his constitutional powers, many liberals are simply aggrieved at conservative political victories. And it is their right to be so aggrieved; goodness knows the Right has felt the same way under different circumstances. But that many on the left prefer to respond by seeking to dramatically alter the century-and-a-half-old configuration of the Supreme Court — something not even FDR could do as president — suggests something deeper is at play.
The fundamental source of this agitation is that the Left was convinced the Court would always be on its side, becoming its personal tool for achieving desired outcomes outside the electoral process.
A fuller understanding requires looking back at recent history. And it requires looking at it more honestly than do the recent laments that, for example, Republican presidents over the past several decades have disproportionately appointed more justices to the Supreme Court than they deserve. For conservatives of a few decades’ past — and still, even, to some extent now — this is not a sign of success but of a particularly cruel kind of failure, if not even their preferred appointees could be trusted once on the Court. The modern conservative legal movement, animated primarily by a renewed commitment to understanding the Constitution as it was understood by those who drafted it (known as originalism), didn’t just come out of nowhere with the 1982 birth of the Federalist Society or the 1985 originalist stirrings of Reagan attorney general Edwin Meese. These and other stirrings came in response to a recognition on the right that the Left had either welcomed or been actively complicit in the transformation of the Supreme Court into a super-legislature, a way for liberals to achieve judicially what they could not electorally.
To conservatives, this fact alone comported ill with the Constitution, never mind that many of the decisions achieved by the Court — most notoriously Roe v. Wade, which legalized abortion nationwide in 1973 — proceeded to do further violence to the constitutional order. Their response was not merely to capitulate to this state of affairs, but to work, slowly yet surely, to change it. The Federalist Society helped these efforts greatly, bringing originalist-inclined law students together, connecting them to like-minded professors, helping to seed law schools and courts nationwide with trustworthy exponents of its philosophy, broadly speaking, and more. And this was done despite significant resistance from the left, which treasured the Court and wished to keep it under its control. Liberals aghast at McConnell’s hardball today shouldn’t just look back at the 2018 treatment of Brett Kavanaugh, but also to the infamous Robert Bork and Clarence Thomas hearings, the treatment of lower-court nominee Miguel Estrada, and more.
And yet, for all of the Right’s successes on the Court, it must still witness what it views as fairly spectacular failures. The first Court with majority Republican appointees essentially affirmed Roe; in 2012 a Republican-appointed chief justice rewrote the Affordable Care Act to uphold it as constitutional; in 2015 the Court found a right to same-sex marriage in the 14th Amendment; and just this past summer, Neil Gorsuch, an apparent textualist, divined protection from transgender discrimination in legislation penned within living memory that originally contained no such protections. To be sure, the Right has had its triumphs — often though not always corresponding to defeats for the Left, only inasmuch as the Left was defying or hoping to defy the Constitution — such that it remains interested in the game. And so it is likely to remain, while still wary of the Court’s ability to uphold the Constitution, even with an ostensible 6–3 majority.
Yet this complicated history, full of the kind of back-and-forth one would expect from the political process, helps to explain the depth of the Left’s anger about the Court’s current status. They are mad that conservatives discovered their thinly veiled attempts at transforming the judiciary and decided to try to recapture it with the help of a philosophy that emphasized a renewed commitment to the Constitution. Now that, after decades of patience and persistence, conservatives have established a beachhead on a Court liberals thought would always be theirs, they are infuriated. Some, such as Sheldon Whitehouse, see evidence of a nefarious conspiracy in what has been accomplished openly yet at great difficulty. But the true root of this remains a frustration that, in at least one area, the Right has refused to go along with the Left’s capture of an institution, that it has not consented to the triumphalist narrative the Left imagines culminates with it forever in charge of everything, never dealing with anything more than token opposition.
With Joe Biden perhaps days away from securing the presidency, however, it is worth keeping in mind that the Right’s approach is not infallible. As it’s suffered in the past, it may in the future as well. Besides even Republican appointees’ having an uneven record of constitutional fidelity, there is also a risk that conservatives abandon such fidelity outright in favor of simply turning the institution into a rightward version of what it once was for the Left. Of course that is not, and has never been, the point of originalism, even as the Right may face this calumny regularly if the Court appears antagonistic to unconstitutional overtures from an empowered Left during a Biden administration.
There is also a reality, one that has genuinely harmed conservatism, that many of its exponents have devoted so much intellectual and political energy to law generally and to the Supreme Court in particular that they have abdicated responsibilities in other areas, particularly legislative. It was worth doing, of course; the nature of the courts and Congress had changed to make it desirable. But if done in isolation it will also have been done in vain. For it will do little good if an originalist-dominated Supreme Court returns power to a legislature that fears exercising these powers and accepting their concomitant responsibilities. Even so, there are still many lessons in the recent political history of the Supreme Court, for both Left and Right. But at the moment, it is the Left that seems unwilling to learn the lesson that the pendulum swings, and instead hopes to hold the pendulum permanently in one place.
Perhaps a certain commission will do the trick . . .