The Washington PostDemocracy Dies in Darkness

Cases this term will shape the Supreme Court far more than Biden’s commission

The court controls its own fate

The U.S. Supreme Court building in Washington. (Stefani Reynolds/Bloomberg)

The U.S. Supreme Court is working through one of its most consequential dockets of cases in recent memory, tackling everything from abortion to gun rights. It does so amid public discontent: Recent polling suggests that public opinion of the court is at its lowest point since 2004, when the poll was first conducted.

This roiling discontent and the sense that the court is operating in a nakedly partisan way prompted President Biden to impanel a bipartisan commission to assess whether structural reforms are necessary to regain the public’s confidence that the court serves the people and not narrow and unpopular political goals. That commission is slated to issue its final report in early December.

Ironically, perhaps, the cases on the docket — more so than the commission report — will shape the future of the court. Despite the occasional protest by the justices to the contrary, the court has traditionally paid enough attention to public sentiment to safeguard its legitimacy — without which it has very little power. As the justices confront backlash and charges of partisanship, a Justice Roberts from another era offers a guide for how the court can rebuild public confidence that it serves as a defender of democracy, the rule of law and fundamental rights.

During the Progressive Era, as awareness grew about the poor working conditions of low-wage workers, states began to try to improve them. Massachusetts led the way, creating a state wage board with the authority to set a minimum wage for women and children. By 1920, 13 states had passed similar minimum-wage laws: some that were mandatory and some, like Massachusetts, simply encouraged employers to pay employees according to particular guidelines. Congress also followed suit, establishing a board to set minimum wages in the District of Columbia for women and minors.

But they ran into a roadblock: the Supreme Court. In Adkins v. Children’s Hospital, the court found this legislation unconstitutional, holding that the “freedom to contract,” upheld consistently in prior cases, included the ability for employer and employee to agree to wages without governmental interference.

This ruling technically only applied to Congress, freeing some states to continue to pass minimum-wage legislation. The onset of the Great Depression and mass unemployment accelerated these efforts, and 25 states ended up passing minimum-wage statutes. In 1936, however, the Supreme Court interceded once again, this time to invalidate New York’s minimum-wage law. This move came after it previously found federal legislation that enabled the Roosevelt administration to set industry-wide minimum wages unconstitutional.

And these decisions were not anomalies. For decades, the court consistently ruled against Progressive Era reforms and then New Deal legislation in many areas of economic and political life, prioritizing the rights of private enterprise to operate unimpeded over the well-being of average Americans or the democratically expressed sentiments of voters.

But in 1937, just 10 months after striking down New York’s minimum-wage law, the court reversed itself and held in West Coast Hotel v. Parrish that Washington state had the power to pass a minimum-wage ordinance. The decisive vote came from Associate Justice Owen Roberts. While he had joined the court’s four conservative justices to rule against the New York law, in West Coast Hotel he switched sides, forming a new majority with the court’s moderate to liberal justices. This new coalition ultimately paved the way for other minimum-wage and New Deal legislation to survive constitutional challenge.

So what changed?

One potential answer is politics. Just two months before the court issued its decision in West Coast Hotel, President Franklin D. Roosevelt, frustrated by the court’s stance toward his New Deal legislation, announced a plan designed to increase the number of justices on the Supreme Court from nine to 15 to dilute the power of the court’s conservative majority.

While Roosevelt’s court-packing plan gained little traction and died in Congress, the main impetus for it, the seeming intransigence of the Supreme Court toward Roosevelt’s legislative agenda, also faded as well after Roberts’s flip. Once the court backed state-based minimum-wage laws, Congress passed the Fair Labor Standards Act, which set a federal minimum wage and opened the door to further state and local government experimentation in protecting workers.

Historians have long debated how much of a role the court-packing plan played in Roberts’s abrupt shift on governmental intervention in the economy, and while the answer may never be 100 percent clear, the fact remains that the court reversed course abruptly and dramatically — and did so by moving in the direction of public opinion.

Justice Roberts’s switch, sometimes referred to as the “switch in time that saved nine,” and the court’s subsequent pattern of mostly upholding New Deal legislation took the steam out of any push to change its structure. The Court ceased being an obstacle to carrying out popular policies designed to address critical societal problems in the name of protecting the narrow interests of economic elites. By adjusting course, the court regained the public’s faith in it as an institution, often enjoying more trust from the American people than the other two branches of the federal government.

Flash forward 70 years. A series of decisions during the 2010s, on everything from voting rights to redistricting to labor rights, has left many with a sense that the court is a partisan political actor. The justices did refuse entreaties from former president Donald Trump to overturn the 2020 election, bolstering its legitimacy. But over the past year, it has reignited these claims by jumping into charged political controversies, including, most recently, by not blocking a polarizing Texas law banning most abortions after approximately six weeks from conception.

The backlash over that decision prompted three separate justices, from different wings of the court, to undertake the unusual move of proclaiming publicly that the court is not a political institution. But the court’s decisions this term, far more than the protestations of the justices, will determine whether it maintains its legitimacy or whether calls to adjust its size or composition continue to grow. Critical cases, including those affecting abortion access, pandemic response, gun rights and government intervention in the economy, among others, are now in the justices’ hands.

In recent expedited oral arguments on the Texas antiabortion law — a reversal from the court’s earlier refusal to step in — several of the potential swing justices on this issue seemed most troubled by a threat to their own power: the legislation’s attempt to effectively immunize the statute from judicial review itself by incorporating novel private enforcement mechanisms.

Still, during oral arguments Dec. 1, the court appeared inclined to uphold Mississippi’s abortion law, which would undermine Roe v. Wade. “Will this institution survive the stench this creates in the public perception, that the Constitution and its reading are just political acts?” asked Justice Sonia Sotomayor. “If people believe this is all politics, how will we survive? How will this court survive?” She recognized that the biggest threat to the court’s power comes from the risk that it completely loses the faith of the public. In the same oral argument, Justice Brett M. Kavanaugh referenced West Coast Hotel as evidence that the court has reversed its own precedents in important moments in its history. He failed to note, however, that it has done so to preserve its legitimacy, not to undermine it.

In statehouses across the country, legislators are enacting voting restrictions, antiabortion laws and other legislation designed to push the constitutional envelope. As a result, fundamental constitutional rights, even democracy itself, will continue to be on the court’s docket for years to come. How the court responds will probably shape its fate.