Even before Justice Ruth Bader Ginsburg’s death, significant voices on the left had embraced the idea of “packing” the Supreme Court: increasing its size, if former vice president Joe Biden wins and Democrats take the Senate, to dilute the impact of President Trump’s appointees and to counterbalance the seat “stolen” from President Barack Obama. Now that President Trump has nominated Judge Amy Coney Barrett and committed himself to a swift nomination — and Republicans have reversed themselves on election-year confirmations — that talk has intensified. And so has debate over ways of taking power away from the court.
Over the past several decades, worries about excessive judicial power have been associated mostly with the political right: Unelected, life-tenured justices, conservatives said, were inventing rights to abortion or same-sex marriage under the guise of “discovering” them in the constitutional text. More recently, though, concern with the outsize role courts play in our life has migrated to the political left. The New York Times columnist Jamelle Bouie recently argued that the United States should not be a “judgeocracy,” making the case that “protecting the right of the people to govern for themselves” may require “curbing judicial power.” Similarly, in the socialist magazine Jacobin, Princeton historian Matt Karp called for leftists to take inspiration from Abraham Lincoln’s aggressive confrontation of a hostile Supreme Court and its infamous Dred Scott decision, which held that Black Americans could not be citizens. “It is not enough,” Karp argued, “to question the decisions, the justices, or even the structure of the current court — we need to challenge, as Lincoln did, the foundation of its power to determine the law.”
In part, the left’s newfound respect for judicial constraint is a predictable reaction to an imminent conservative takeover that could last decades. Just as enthusiasm for executive power waxes and wanes depending on the occupant of the White House, opinions on the Supreme Court vary depending on who has a majority of seats. But the embrace of a lesser role for the court also reflects a growing consensus that judicial conservatives may have had a point: Except perhaps in the most clear-cut cases of constitutional violation, the social and economic policies of the nation should not be determined by a small, unrepresentative, unaccountable body of legal elites.
A generational shift helps to explain how the left got to this place. For older liberals, the tremendous civil rights advances by the Warren Court — the desegregation of schools in Brown v. Board of Education and the recognition of a right to interracial marriage in Loving v. Virginia, for example — loom larger in historical memory than they do for younger citizens. Drawing on those memories, the older cohort came to view the court as a bulwark against the rise of Movement Conservatism — even as the court grew more conservative, owing in part to Republican presidents having more nomination opportunities. Older liberals still clung to the view that their values were better advanced or preserved by appealing to democratically unaccountable judicial elites, as opposed to the unruly masses.
A younger generation of progressives and leftists, by contrast, have much more optimism about the possibility of electoral success, owing to the rise since the 2008 financial crisis of figures such as Sen. Bernie Sanders, I-Vt., and Rep. Alexandria Ocasio-Cortez, D-N.Y., these Americans are also more desperate, crushed by student debt, lacking stable employment and staring down climate collapse. They think they can (and must) win the popular debate over the Green New Deal and Medicaid for All, and they rightly see the undemocratic Supreme Court — which they’ve already witnessed reject the (very popular) mandatory expansion of Medicaid under the Affordable Care Act, and question the legitimacy of the modern regulatory state — as an impediment to a survivable future.
Some court watchers believe the main problem with the court has to do with its loss of legitimacy. If we can only reduce the partisan heat, this reasoning goes, the court can return to its “normal” role of determining impartially “what the law is.” The Supreme Court, however, has always been an ideological institution, even if that ideology now correlates more closely with party identification. For that reason, many on the left — including me — reject the goal of re-legitimation, proposing that we “democratize” the institution instead.
In the menu of reforms liberals are considering, court-packing has drawn the bulk of attention. The case for adding at least two justices becomes much stronger as Senate Majority Leader Mitch McConnell, R-Ky., continues his “constitutional hardball” tactics — such as failing to hold hearings for a Democratic nominee then rushing to approve a Republican one. Still, there’s a risk of partisan spiraling: Republicans could further expand the court when they get a chance. More importantly, adding seats to the Supreme Court would, by itself, leave the institution a threat to progressive legislation either immediately (two extra seats would still leave Chief Justice John G. Roberts Jr. as the swing vote) or across time (as conservatives engage in tit-for-tat expansion).
Fortunately, as Yale Law School professor Samuel Moyn and I argue in a forthcoming law review article, progressives have additional tools at their disposal to make the Supreme Court much less powerful. A new Democratic Congress could, for example, impose by ordinary statute a limit on the Supreme Court’s authority to declare federal legislation unconstitutional, permitting it to do so only by supermajority (say, 7-2) rather than the usual 5-4. In so doing, Congress would be using the same power it does to dictate how many justices constitute a quorum. This reform would implement, via voting rule, the sort of “clear error” approach to judicial review imagined by Harvard professor James Bradley Thayer in the late 1800s. Such a rule would permit a judicial veto in cases of uncontroversial constitutional violation (for example, an effort to reintroduce de jure segregation of schools or criminalizing the speech of political opponents) but otherwise require the court to stay its hand.
Alternatively, Congress and the president might (again by ordinary statute) “strip” the court of jurisdiction over constitutional challenges to specific legislation — the Green New Deal, for example, or HR1, the sweeping set of reforms first approved by the Democratic House in 2019 that includes establishing automatic voter registration, making Election Day a national holiday and ending partisan gerrymandering. (It could also strip its jurisdiction over whole areas of law, such as climate legislation). Here, Congress would be making use of its Article III power to decide what kinds of cases the Supreme Court may hear on appeal — the court has constitutionally mandated jurisdiction only over disputes between states and the like — as well as its authority to decide whether lower federal courts exist at all, and so what cases they are permitted to hear.
Naturally, Democrats should not expect to overturn “juristocracy” without a fight. The exact scope of Congress’s ability to strip jurisdiction remains controversial, and a recalcitrant court might resist. This is a situation in which additional sympathetic justices recently added to the court might be helpful; court packing, in other words, might pave the way for additional reforms. Whatever stance the court takes, the limits Congress may impose is a question that careful attention to the Constitution is unlikely to answer; rather, as with most of these disputes, the resolution would ultimately be political, as opposed to legal, with the political and judicial branches left to hash out a new status quo. As former dean of Stanford Law School Larry Kramer has observed: “The Constitution leaves room for countless political responses to an overreaching court” — including judicial impeachment, slashing the court’s budget, giving the justices onerous responsibilities or simply ignoring the court, as did Lincoln, after the Dred Scott case.
Conservatives made similar efforts at limiting the court’s authority in the 1970s and 1980s (backed by legal arguments from a young Roberts, working as an attorney at the Department of Justice) — repeatedly introducing legislation to limit federal courts’ ability to adjudicate contentious cultural issues such as abortion and school prayer — and have made similar efforts since. Those efforts failed, in part because of a lack of support in the Senate, but one can imagine that a Democratic-controlled Senate might be exceptionally motivated to protect its potential legislative accomplishments from a hostile judiciary.
Given Republican rhetoric about unduly powerful courts, there’s a chance that at least some conservatives may embrace the cause of judicial disarmament (especially if liberal court-packing is the alternative). For both parties, of course, going down such a path would increase the stakes for who controls the political branches. Both sides would have to ratchet down the expectation that the Supreme Court would annul popular laws that they find distasteful — whether that means (on the right) a statute phasing out fossil fuel production or (on the left) a federal ban on affirmative action in higher education. In a democracy, however, that is exactly how things should be.