Magazine | November 12, 2018, Issue

New Judicial Opinions

(Roman Genn)
The battle over the Supreme Court has the Left rethinking the judiciary

Liberals are having second thoughts about judicial power. For decades, they celebrated the role of the federal courts in advancing progress over the objections of hidebound, self-interested, or reactionary majorities. The liberal legal theorist Ronald Dworkin wrote that the Supreme Court “calls some issues from the battleground of power politics to the forum of principle” — an account of the constitutional division of power that, while foreign to any Founding-era political thought, reflected widespread liberal assumptions.

The confirmation of Justice Brett Kavanaugh is changing those assumptions. The Supreme Court now appears to have a fairly solid conservative majority. It is the first time it has had one since the Court acquired the power it now exercises, starting roughly in the late 1940s. (It is also the first time it has had one since the beginning of the conservative movement, which is typically dated to around the same time.) Calls to impeach Kavanaugh are in part a reaction to this new and unwelcome state of affairs.

But impeachment is only the beginning. Looking beyond Kavanaugh himself, liberals are reacting to the new conservative majority by harking back to a time almost beyond living memory, when their forerunners denounced the “nine old men” who were standing in the way of the New Deal. FDR re­sponded to judicial opposition by proposing “court packing”: expanding the size of the Supreme Court to build an allied majority. That effort failed, but the strategy is getting a new hearing from liberals.

If Democrats win the 2020 elections, some liberals say, they should add two new justices to the bench to make up for President Trump’s appointees. Congress and the president have that power: The Constitution is silent on the size of the Supreme Court, although it has been fixed at its current number by statute since 1869. To implement this idea would require the support of the president, a majority of the House, and either a supermajority of the Senate or a majority willing to change the rules on filibusters.

The emotional tenor of these discussions is not one of awe at the majesty and nobility of the Supreme Court. Writing in Slate, New York University law professor Christopher Jon Sprigman argues that it’s about time liberals adopted a more realistic view of the institution: “The reality is that on the major civil rights decisions of the past 60-plus years, the court has followed rather than led public opinion and has often been ineffectual in the championing of progressive ideas.” Even worse, Roe v. Wade “birthed a militant pro-life movement that has . . . helped push the center of American politics to the right.”

The new liberal skepticism about the value of judicial power is yielding other proposals to combat conservative jurisprudence. Term limits for the justices are getting an airing on op-ed pages. The liberal publication Vox ran an interview with Harvard University law professor Mark Tushnet to discuss the idea of abolishing judicial review — that is, of no longer letting federal courts strike down laws as unconstitutional — or at least curtailing it.

Sprigman has suggested one way that might be done. Article III of the Constitution gives Congress the power to limit the federal courts’ jurisdiction: explicitly, by making “exceptions,” in the case of the Supreme Court; implicitly, in the case of the lower courts, through its power to create them in the first place. Sprigman is not advocating that these powers be used in piecemeal fashion: He would have Congress pass a law claiming for itself the power to override Su­preme Court decisions, and then deprive federal courts of any ability to counter this new power.

Calls for judicial self-restraint, while less dramatic than proposals for structural reforms to judicial power, are also being heard more often from center-left voices these days. William Galston writes in the Wall Street Journal: “It is also time to reconsider the outsize role that the Supreme Court has assumed in our national life. In my view — and I address this to my fellow liberals as well as to thoughtful conservatives — we need an extended period of judicial minimalism in which the court rules modestly and incrementally, with maximum respect for precedent and settled law.”

Conservatives have had two reactions to this ongoing liberal reevaluation of the courts. One is to gloat at liberals’ powerlessness: They failed to stop Kavanaugh from getting confirmed, and there is something fantastic about the proposals they are now making. (Who is to say they will win in 2020?) The other is to worry about liberal proposals as a threat to important freedoms, the rule of law, and the constitutional structure.

That worry can’t be lightly dismissed. A successful packing of the Supreme Court, even a limited one, may inhibit the justices from offering their best legal reasoning: They will know that if they offend the party in power, or the party about to take power, their work can be undone by another round of court-packing. And it would not be hard to conjure scenarios in which downsizing judicial power led to clear constitutional abuses. What if Congress and the president enacted a law forbidding criticism of themselves and then stripped the courts of the jurisdiction to review that law?

But the new liberal stance has something to recommend it — even if it is opportunistic, even if it presents some dangers, and even if the specific proposals that accompany it vary in their wisdom. The heroic conception of the Supreme Court deserves the historical debunking it gets from Sprigman, and more. Decades of judicial self-aggrandizement have obscured how comparatively passive the Court was in prior eras. In our first 70 years under the Consti­tution, the Supreme Court struck down precisely two federal laws for violating it. In the first case (Marbury v. Madison), the Court merely disclaimed a power that it said the Congress could not give it. The second case was Dred Scott, in which it invalidated restrictions on slavery in U.S. territories.

Professor Tushnet offered a less grandiose description of the mission of the Supreme Court — “the general role, as it’s come to be understood, is to police the boundaries of our political system” — but even that description goes well beyond the purview it was thought to have during much of our history.

That history should inform our judgment of the risks of returning to a more modest understanding of the judicial function. The country was able to enjoy the blessings of constitutional government without making nearly as extensive use of judicial review as we now do. And the distortions created by too active a judiciary, particularly in constitutional matters, are harder to correct than those created by passivity.

If the courts bless a statute or policy that they should not, political action can still undo it. If they wrongly strike it down on constitutional grounds, on the other hand, our customary practices make it almost impossible to rectify the mistake. So long as any significant political constituency is rooting for the error, no constitutional amendment can erase it.

It remains to be seen how deeply the new liberal sentiments will set. Re­sponding to Sprigman’s provocations, Daniel Hemel, a law professor at the University of Chicago, suggested that a retreat from what he candidly called “judicial supremacy” would do more to harm than to help the Left. “Progressives primarily fear a court that fails to intervene when states curtail access to the ballot, that fails to intervene when states impose stringent abortion restrictions, and that fails to intervene when Presi­dent Donald Trump meddles in the investigation of his campaign’s Russia ties. Defanging the court — as some progressives propose to do — simply ensures the nightmare scenario every time” (emphases in original).

Hemel makes a point in passing that deserves elaboration. The most passionate commitment of the judicial Left, and certainly its most powerful organizing cause among voters, runs directly against any project of downsizing judicial power. That project would also, pace Galston, endanger cherished liberal precedents. No meaningful reduction of the courts’ power can be said to have taken place if they continue to bar legislation supported by tens of millions of citizens, and bar it without any warrant in the text, original understanding, history, or structure of the Constitution. If liberals really want to abandon judicial supremacy, they will have to abandon Roe too.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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