Justice  /  Argument

Making the Supreme Court Safe for Democracy

Beyond packing schemes, we need to diminish the high court’s power.

... by racist Southerners, Brown also drew doubting commentary from senior liberal judges like Learned Hand, together with liberal scholars hewing to the Thayer tradition. The decision helped consolidate the idea that judges must defect from Thayer’s principle of judicial restraint for a good cause.

... by racist Southerners, Brown also drew doubting commentary from senior liberal judges like Learned Hand, together with liberal scholars hewing to the Thayer tradition. The decision helped consolidate the idea that judges must defect from Thayer’s principle of judicial restraint for a good cause.

Brown went on to become a canonical decision in modern liberal jurisprudence, allowing liberals to join in on the eager deference to Marbury that conservatives had endorsed decades earlier. Warren’s Supreme Court continued to consolidate the new liberal position in a series of landmark rulings on criminal justice and anti-discrimination law. In the 1970s, Ginsburg, Pauli Murray, and other activists invoked the same principles of federally guaranteed equal protection that Brown had consecrated to advance the cause of gender equality.

Despite these high-profile successes, the truth was that, even at the zenith of liberal power over the courts, congressional action actually led to a greater expansion of rights protection in American society. (Some historians maintain that Brown had done its most important work by helping to enable and direct these new rights-protecting enactments.) The federal legislature was the motivating force behind what progress ensued in the realm of school desegregation, and played an indispensable role in the removal of obstructions to voting. But the experience of judicial power as a successful political shortcut had begun to exert enormous influence over the liberal mind, since it proved easier to organize and simpler to maintain than transient popular support for liberal policies.

In retrospect, there were two serious problems with liberal reliance on judicial fiat. One was that the ascendancy of liberal inclusion was class-free and shied away from the structural foundations of inequality. This meant that court rulings could invoke formal equality in majestic language but never ensure the basis for full citizenship in America’s political economy. As a result, the liberal reliance on judicial power produced, over time, a form of liberalism benefiting the well-off, not the truly vulnerable. As the public schools were resegregated, liberals could not or would not forge a popular movement for a transracial majority of the kind Roosevelt enjoyed among the white working class. It was no accident that the cult of Ginsburg became most fervent in an era of a class-free, “lean-in” feminism.

Second, the reign of the liberal juristocracy was astonishingly short-lived. Richard Nixon’s presidency slowly built up conservative power on the court, starting with Warren’s successor as chief justice, Warren Burger, in 1969. Nixon made a series of transformative appointments—such as Lewis Powell and William Rehnquist—in the early 1970s that effectively stopped the liberal judicial project in its tracks. Republicans made 10 appointments to the Supreme Court between 1969 and 1992, and four since (presuming Barrett is confirmed)—that’s compared to the Democrats’ four appointments between 1969 and today. Where Democrats had little to show for their brief stint in the citadel, once Republicans took over, the results were catastrophic.

It wasn’t just that racial justice went backward. The very rights that liberals had set out to defend by unleashing judicial power were often those conservatives deliberately reappropriated and harnessed in pursuit of devastating policy ends. Free speech was converted into a set of protections for the powerful and wealthy, including within elections, as in Citizens United v. Federal Election Commission (2010), or in labor disputes, as in Janus v. American Federation of State, County, and Municipal Employees (2018). With liberal connivance, indeed, the Supreme Court has in our time become more business-friendly than at any other point in nearly a century.

And in interpreting another clause of the First Amendment, the Roberts court has converted the right to free exercise of religion from a principle of toleration in a secular state to one that exempts believers and their institutions from anti-discrimination law and allows governments to fund them. ...