The American People Are the Arbiters of the Constitution
When the courts (and in particular the U.S. Supreme Court) veer too far out of sync with the country’s values, mores, and zeitgeist, and are seen as illegitimate, the democratically elected branches of government and the community at large need to respond and do what is required to rein in out of control courts.
In fact, over the course of American history when the Supreme Court has veered too far out of sync with the country’s values the democratic community has responded appropriately, and, accordingly, the court has retreated.
Government of, by, and for The People
The concept of an American constitution that evolved under the American colonists existed well before the Declaration of Independence, long before the U.S. Constitution was actually written on paper and ratified. In the decades before the American Revolution many American colonists increasingly saw themselves as separate from the British with sense of a distinctive identity as inhabitants of a republican society who felt quite apart from those on the British Isle. Life in the American colonies over the years nurtured a sense of a uniquely American identity.
The American revolution was launched essentially arguing that the British were violating the American colonists’ concept of constitutionalism repeatedly, as the American colonists, who increasingly saw themselves as a separate people, had become used to having voice in their own American affairs. The concept of American constitutionalism and its enforcement rested in the community at large. There was no real concept of judicial review or judicial supremacy. At no point during the American Revolution did anyone say, "Let us go to the courts and find out if the British actually have the power to tax us."
When the American constitution was finally formalized and written (an early attempt, the Articles of Confederation, failed for several reasons which are beyond the scope of this discussion) it was not written as an empty charter. It was written with a purpose and that was to create a democratic republic. It had a political goal. How one interpreted the constitution depended on what one thought the goals of the American republic were supposed to be.
Judicial Review vs. Judicial Supremacy
As judicial review did emerge in the early days after the American revolution it came out of the notion that courts are agents of the people just as the other branches of government, the executive and the legislative branches, are. If a specific case comes before the court, the court must interpret the constitution, but its interpretations are not superior or binding on other branches in the system. Each branch performs its own interpretation and final authority rests in the democratic community by how the community responds to the decisions.
Judicial supremacy, different from judicial review, is the anti-democratic notion that, whatever the other branches think, whatever the community at large thinks, whatever the states think, the court’s interpretation is the interpretation that everyone else is supposed to follow.
That is different from stating that the courts can have their say, and their say can be applied in the specific case that was decided, but if Congress disagrees, they can pass a law that is different from the court's decision, and what that does is effectively force the issue back to the democratic community, and how the community responds to the various things that are happening in the different departments of government will ultimately decide the issue.
Judicial review states that all branches of government, including the court, have a say in interpreting the constitution, but the court's interpretation is not final or binding. Whereas, the acceptance of judicial supremacy changes the way in which the court's interpretation is perceived. With the acceptance of judicial supremacy, the court has moved from the people's servant to their boss, and the court's interpretation is given much more weight than it would under judicial review.
Judicial supremacy was put forth in the 1790s by the right-wing federalists and it was opposed by the more progressive Jeffersonians. The Jeffersonian view of judicial review was not that the courts would have no say, it was just that the courts' say was not final and binding on the other branches.
Under judicial review the people can interpret what their rights are by pushing back on the court in the ways that have occurred throughout American history.
Early Instances of Curbing the Court
In 1800 those who supported judicial supremacy were defeated by the progressive Jeffersonians. However, the battles over judicial supremacy have continued throughout American history.
It is important to note that Marbury v. Madison (1803) is a rejection of judicial supremacy. Marbury says that courts no less than the other branches have authority to interpret the constitution.
The court tried to assert judicial supremacy again in the late 1810s and lost, and again in the Jacksonian period around the second bank and was defeated, and again around slavery in the territories in Dred Scott v. Sandford (1857) and was then defeated again.
Throughout the late 1850s, Lincoln argued that “the American people,” not the Supreme Court, were the true arbiters of the Constitution, and that the only way to defeat the pro-slavery judiciary was through mass political struggle. After Lincoln was elected in 1860, he, in his inaugural address, articulated this view in perhaps the strongest language he ever used:
[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.
Once in power, Lincoln and congressional Republicans “reorganized” the federal judiciary and expanded the court, adding an additional justice in 1863. More fundamentally, though, they simply set aside and ignored the pro-slavery precedents established in the 1850s. In June 1862, for instance, Congress passed and Lincoln signed a bill banning slavery from the federal territories, a direct violation of the majority ruling in Dred Scott. The court meekly acquiesced, recognizing that its political power was long since broken.
Then after the Civil War and Reconstruction there was a period of divided government. When the government is divided, the court tends to assert its authority. The court reasserted its authority and the idea of judicial supremacy re-emerged relatively strongly in the 1880s and 1890s and in the Lochner era (1905 - 1937) and was then defeated by the New Deal.
FDR Wins His War to Control the Court
The conventional wisdom is that Franklin Roosevelt's attempt to control the court, including court expansion, was norm breaking and generally a failure, but that conventional wisdom dismisses the fact that FDR ultimately achieved his goals. FDR was elected with huge popular vote and electoral vote majorities to do something about the country's economic crisis. He acted immediately, and the court invoked a set of interpretive theories that were very outdated and stuck down the first New Deal.
FDR and Democrats began pushing back against the court making the argument that the court’s rejection of the New Deal was not the way that things should be done in a democratic republic, and in that battle proposed court expansion as part of an overall solution.
Court expansion was not supported by a majority of the population when FDR announced his proposal for it in February of 1937, but court expansion has never been terribly popular whenever it has been proposed. It was not popular when Andrew Jackson expanded the court, or when Abraham Lincoln did.
FDR pushed the idea of court expansion (which, of course, was not a novel idea, as using the size of the court to control it has been done multiple times over American history). Court expansion was not the only thing that was being suggested in a concerted campaign to raise popular awareness of what the court was doing and to raise popular opposition to allowing the court to continue doing it and holding the country back from making progress.
As a result that overall campaign, in the spring of 1937 justice Owen Roberts, who had been in the five-person right-wing majority, flipped his votes on a set of cases, including validating a minimum wage law (West Coast Hotel Co. v. Parrish which overturned Lochner v. New York (1905)), sustaining the National Labor Relations Act (NLRB v. Jones & Laughlin Steel Corp), and finding that the Social Security statute was constitutional (Helvering v. Davis). The court had upheld the second New Deal and allowed its laws to go into effect.
A few weeks later justice Willis Van Devanter, one of the Four Horsemen who opposed the New Deal agenda, who had also been in the five-person right-wing majority, announced his retirement and FDR replaced him with Hugo Black, so FDR no longer required expansion of the court to achieve his immediate goals for the country, and, accordingly, FDR at that point no longer prioritized advocating for court expansion because his campaign against the court’s recalcitrance had been successful. It’s worth noting that a tactic may not be popular but at the same time can be very politically effective.
If one does not view proposing court expansion in isolation but views it as part of a larger campaign to rein in the court, it is exactly how it is supposed to work in a democratic society, and has worked in American history, which is when the court has veered too far out of sync with the country’s values, mores, and zeitgeist, and has been seen as illegitimate, the democratic community responded, and the court has retreated.
FDR believed in a vision that the constitution was designed to create a society in which the people are taken care of where there is a social safety net and other institutions exist to provide for the general welfare of the American people, but since FDR’s time articulation of that vision of interpreting the constitution has largely disappeared from the progressive community.
The Left’s Shift to Accepting Judicial Supremacy
The court reasserted itself in the mid-1950s, but there was a difference then, because for the first and only time in American history there was a court, the Warren Court, that wanted to assert its authority that was progressive.
Up until the mid-1950s almost no one on the left thought that courts had the final say over the constitution. For the left the concept that the courts had final say over the constitution is a second half of the 20th century invention that effectively begins with Brown v. Board of Education of Topeka (1954).
With the rise of the Warren Court in the 1950s and 1960s those on the left did something that they had not done before, and that is they embraced the doctrine of judicial supremacy and they came to see the constitution as the purview of judges and the word of those judges as final. During that era, the long history of politics around the constitution and around the courts began to collapse on the left, and both the right-wing victories of recent months and years, as well as the muddled response from the left are, at least partially, the result of that collapse of progressive constitutional politics.
For the first time the debate shifted from who shall have final say over the constitution to how shall the constitution be interpreted, and that debate became the left versus right split.
"Originalism"
The debate over how to interpret the constitution is the genesis of "originalism" which emerged in the 1970s and through 1980s as the right-wing theory of the constitution. Robert Bork was one of the early advocates of the concept of "originalism" as a legal principle with his 1971 article Neutral Principles and Some First Amendment Problems.
The notion of “originalism" was initially considered a fringe idea and did not really become a consequential concept until the right-wing Federalist Society, founded in 1982, started advocating it, and members of the Federalist Society began sitting on federal courts, including the Supreme Court.
How to interpret the constitution is the debate that has been occurring since because the left, during the Warren Court, accepted that the courts should have final say over the constitution. However, it’s important to realize that the Warren Court hasn’t been in existence for well over 50 years, but many on the left seem to act as if it still is as they still look to the court for significant redress. The court is not going to be much help to the left until the court is meaningfully reformed from its current configuration.
The right having fully embraced neoliberalism (deregulation, privatization, austerity, unfettered trade, etc.) interprets the constitution consistently with neoliberalism, effectively constraining government, and the theory of "originalism" supports that in many ways, although, the right also turns "originalism" around as an aggressive activist tool when it is convenient for them to do so.
“Originalism” is not simply another way of citing precedent. “Originalism” is a tool used by the right to limit the interpretation of the constitution to how the right believes it would have interpreted at the time that it was written (i.e. before women and African Americans had full rights).
Of course, “originalism” is completely ignored or misconstrued by the right when it is convenient for them, such as when they want to conclude that the constitution provides for an individual right to bear arms (Heller (2008)).
Also, the notion of “originalism” has shifted over time. Initially it was supposedly what the framers intended at the time of the writing of the constitution, but that became problematic because different framers had different intentions with respect to the constitution. Then it became what was “commonly understood” by the public at the time of the writing. Now it seems to focus on the historical meanings of individual words found in old dictionaries. Actual historians (and the Supreme Court members and their clerks aren’t even mediocre amateur historians) know that the Constitution, like most texts or historical events, doesn’t have only one historical meaning.
Supporters claim that “originalism” is “objective,” and, therefore, it prevents judges from injecting their personal views into the law by anchoring the law’s meaning in the past. However, academically trained professional historians also know that there’s no such thing as a truly “objective” or definitive account of the past. Also, interpretations of historical events change over time, as new evidence appears, or as new perspectives cast light into dark corners of the past.
The court’s originalist opinions remove all the context necessary to make sense of the past, and context is key to understanding any historical source. Instead of offering key context, the court’s originalist opinions offer hyper-focused discussions of individual words and historical dictionaries alongside lists of citations to old statutes and cases that are very clearly cherry picked.
The Current Court's Lack of Legitimacy
The current court is seen as illegitimate by a large percentage of the American public not simply because many of the reactionary and extremist opinions (Bruen, Dobbs, West Virginia v. EPA, etc.) and doctrines (e.g. the “major questions” doctrine, “originalism,” “textualism,” etc.) it espouses are created out of thin air and are bat-shit crazy.
The court is seen as illegitimate for many other reasons, such as it has two members who have been credibility accused of sexual misconduct, two seats were effectively stolen by Republicans, five right wing members were appointed by Republican presidents who assumed the presidency after having lost the popular vote (and were confirmed by U.S. Senators who represented minorities of the American population), multiple members have been captured by right wing billionaires and appear to have massive conflicts of interests, it adheres to no ethics code, etc.
The court’s power to have its opinions followed lies in the respect, legitimacy, and good will it has in the view of the American people. When the court is continually seen as illegitimate it is inevitable that its opinions will ultimately be seen by the public as inoperative.
In a democratic republic the final say over constitutional interpretation must rest with the people at large in how they respond to what political actors are doing.
No healthy democratic society that works well has anything like the ugly American exhibition of the last several decades, where minority special interest groups spend tens of millions of dollars, if not hundreds of millions or more, trying to get through the courts what they could not achieve via democratic legislation, while the American people wait during each term of the Court to see which of their rights might disappear.
With the courts currently configured as they are, especially the Supreme Court, the extreme gerrymandering of many districts, voter suppression tactics by Republicans, the anti-democratic configuration of the U.S. Senate, the electoral college, census under counting, etc., the country is effectively governed by minority rule.
The right understands that their agenda is unpopular, much of it extremely unpopular, with the vast majority of the American public, and knows that the only way that their agenda can be enacted is by employing undemocratic means. Meaningful court reform would be a move toward making the governance of the country more democratic and would help prevent an unpopular anti-democratic agenda from being imposed on the American people.
The Court is not Representative of the American People
It’s worth noting that the number of members of the Supreme Court was set at nine, which it currently sits at today, by statute in 1869 when U.S. population was a relatively homogeneous 38 million people. Whereas, today the U.S. population is a much, much more diverse 330 million plus people. Therefore, today the expansion of the court with an increase in number of members and a commensurate increase in diversity of backgrounds can be justified due to the vast increase in diversity of the American population since 1869. Increasing numbers and diversity of backgrounds should help minimize court group think (8 out of the 9 current justices attended law school at either Harvard or Yale, with Amy Coney Barrett being the sole member who did not, attending law school at Notre Dame), and make the court more representative of the population.
Given the makeup of the court over the years it’s not surprising that for most of American history the U.S. Supreme Court has functioned to protect the rights and privileges of the elites and the wealthy, mainly rich, white, straight Christian males.
Congress Can Curb the Court
Unfortunately, for the last many decades Congress has essentially abdicated its oversight responsibility with respect to the Court. The Court has seized power and Congress has effectively done nothing to check the Court's power in response.
Reversing what can seem like an unbreakable doctrine of judicial supremacy in the U.S. might be difficult for some to imagine. However, Congress can limit judicial review, or it could add a unanimous requirement for the Court to overturn or take away existing constitutional rights. Article III states that the Supreme Court holds appellate jurisdiction in all cases, but “with such Exceptions, and under such Regulations as the Congress shall make.”
Congress could give the court less control over its own docket by repealing key provisions of the Judiciary Act of 1925, such as reinstating direct appeal to the court and removing from the Court discretion to decide which cases it will and will not hear.
If Congress were to append jurisdiction-stripping language to a significant number of laws, as it has done in a few cases previously, then judicial supremacy would be ended.
On issues of statutory interpretation Congress can negate the Court, if they disagree with its findings, by clarifying statutory language to reassert their will. One factor currently enabling the power of the Court is partisan paralysis by Republicans in Congress, which makes such simple language fixes almost impossible to enact.
Democrats’ Campaigns Should Advocate Court Reform
If the democratic community doesn’t exert its power to push back publicly against the court and its corruption and misguided decisions by a captured majority, the right wing will be further emboldened to enact its unpopular agenda with impunity, and will further erode the rights of the American people.
Biden and Democratic leaders and candidates should realize that serious discussion about Court reform, including Court expansion, can have desired positive results if that discussion is part of an overall strategy of a campaign to raise popular awareness of what the court is doing, and to raise popular opposition to allowing the court to continue to try and take the country effectively back to the Antebellum era.
Court expansion, jurisdiction stripping, or other tools that have been used for court push back over American history, are no longer seen as being completely off the table as the Overton window for those reforms has seemingly expanded with respect to the current court, and could be implemented sooner rather than later, given the current attitude of the American public toward the court, especially with all the recent revelations regarding the court, particularly if Democrats can retain the White House and obtain significant control of both houses of Congress in 2024 with enough Senators to abolish the filibuster with respect to Court related issues.
With sufficient Democratic control the following reforms to the federal court system could be enacted:
- Expansion of the federal court system, especially the U.S. Supreme Court
- Establishment of federal judicial terms limits of 12, 15, or 18 years, after which a judge is relegated to senior status and no longer regularly sits on cases
- Establishment of strict ethics rules for the members of the U.S. Supreme Court, which a violation of would cause the offender no longer to be deemed to exhibit good Behavior
It is critical to take on the Court directly. The other branches cannot be passive and accept extremely questionable legal decrees, because that will only encourage the right wing justices to become even more radical. The undeniable fact is that unrestrained judicial supremacy is a violation of basic principles of American democratic society, and no court can be trusted with it.