Our Over Mighty Supreme Court

As the country appears poised for some version of a reprise of Anita Hill's epic 1991 confrontation with Clarence Thomas in the updated form of Professor Christine Blasey Ford’s challenge to Judge Brett Kavanagh, whatever the outcome, this seems as good a time as any to rethink the Supreme Court’s outsized role in our contemporary society. It is that outsized role which  the Supreme Court has assumed over time, which is what has made these appointments and confirmation processes seem so apocalyptic.

I have long been unimpressed by judicial supremacy, by the insouciance with which the judiciary rides roughshod over the will of the people as expressed through their democratically elected representatives. Of course, as we all know, this is not supposed to be a democracy. The Founders, following Aristotle and Polybius intended a mixed constitution, in which the perils of popular rule would be protected against by mixing monarchical and aristocratic restraints (the presidency, the senate, the judiciary, etc.) The problem is not the Founders' design but the systemic contemporary weakness of the legislative branch that has thrown the system so far out of balance.

It makes sense that the different branches increase and decrease in power relative to each other according to circumstances. Historically, had Congress done its job and enforced the 15th Amendment guaranteeing African-Americans the vote (as the Amendment itself authorized Congress to do), Reconstruction would have ended very differently and Jim Crow probably never happened. Unfortunately Congress failed in one of its most monumental historical failures. With access to the elected branches unconstitutionally closed to African-Americans, it was necessary and proper to turn to the judiciary, and for the judiciary to balance the other branches' malfeasance by playing an activist part in the 20th-century civil rights revolution. 

But from that positive development an unfortunate lesson may have been learned which led to turning far too many political controversies into legal cases about rights. Abortion was an obvious early example. In the unfortunate 1973 Roe v. Wade decision, the Supreme Court arrogated to itself a controversial question, which various states were already in the process of addressing in different ways, and which foreign countries largely resolved through the political process - with the result that the United States has the most radical abortion regime of any Western society, because of which the country continues so many decades later to be totally and unresolvably polarized.

This was but one example of the larger problem of turning too many political controversies, which ought to have been resolved by elected officials through the political process, into issues of "rights" to be resolved by an unrepresentative judiciary. What was "an essential tactic in the early years of the civil rights movement," Mark Lilla has written, has become "the habit of treating every issue as one of inviolable right, leaving no room for negotiation" which has inevitably "cast opponents as immoral monsters, rather than simply as fellow citizens with different views." (Cf. The Once and Future Liberal:After Identity Politics, 2017, p. 113).

Contributing to this has been the Congress's unconscionable abdication of so much of its legislative responsibility - primarily to the president, but ultimately also to the judiciary inasmuch as Congress has been content to see so many contentious issues "resolved" judicially rather than legislatively. The consequence, however, has been an increasingly polarized society, where instead of deliberation, debate, and legislative compromise, each side has engaged in an all-or-nothing high-stakes power conflict, producing a politically polarized and dysfunctional society in its wake.

The tragic outcome of the 2000 election was another illustration of this. A properly restrained Supreme Court would have stayed out of something that was really none of its business, it being ultimately the responsibility of Congress to make the judgment to accept as valid a state's electoral votes.  But we can barely imagine a modern Supreme Court restraining itself from interference that served its majority's political advantage. Even less can we imagine Congress, confronted with the crisis of an election such as we had in 2000, actually stepping up and exercising its constitutional role, rather than readily punting to the Court.

Judicial restraint - the real thing, not the popular political slogan each side invokes when the Court's decision goes the other side's way - would diminish the salience of judicial nominations and confirmations in this all-or-nothing high-stakes contest. In theory, judicial restraint should be easier to achieve since the third branch is formally the weakest branch. Congress could, for example, periodically "pack" the Court by increasing the number of Supreme Court Justices. congress has the power to change the number of Justices and has done so in the past. However, ever since the failure of Franklin Roosevelt's 1937 "court packing" scheme, the number 9 seems to have acquired an almost mystical significance. In 1937, the threat of packing the court, even though it failed, did move the Court to reconsider its obduracy. But there seems little prospect of any comparable reform - or threat of reform - that could have the effect of restraining the Court today. hence the all-or-nothing high-stakes contest over every Supreme Court vacancy - culminating in 2016 in the unprecedented theft of a Supreme Court seat by the Senate's Republican majority.

One possible reform which has attracted some attention and support would be to amend the constitution (a very difficult but not completely unachievable goal) to replace life-tenure with a limited term.  Given the greater longevity of the average contemporary Justice, this could be considered almost a commonsense reform. As long as the bar for impeachment remains high and the terms are long enough, appointing Justices for a fixed term would not diminish their proper judicial independence. Obviously the term would need to be long enough to last beyond the administration of the President who did the appointing. One recent article I read recommended 18 years. Personally I would prefer 10 or 12 years - long enough to be a fulfilling career and leave a strong legacy, but still short enough that each appointment would not need to be seen as verging on the apocalypse.