Justice Antonin Scalia — a reactionary presence on the Supreme Court for three decades — is dead.
In this moment and the moments to come, we have the opportunity to demand a different kind of Supreme Court — one disciplined and bounded by collective political action, rather than one standing athwart it. We must insist on this vision even while salvos of pleading, cajoling, and dire threats erupt from our right flank.
We will be told that the stakes for this year’s presidential contest are higher than ever. We will be instructed to uncritically support the presumptive (though beleaguered) Democratic nominee, or else risk losing the chance to prevent another conservative from joining the Court.
We will be warned — as we have been already — against “re-litigating” legislative disappointments like the Affordable Care Act. The chorus will be comprised of elite liberals, who are besotted with the idea of entrenching policy through legal argumentation rather than pursuing political change through popular struggle.
To be sure, Scalia’s death has temporarily thrown a shroud of uncertainty over a number of important cases this term — cases that will shape collective bargaining, immigration, affirmative action, and environmental protection. But making the staffing of the Court the focus of political activity can, at best, only delay calamities for labor, for the planet, and for those excluded and dominated by structures of xenophobia and racism. Law is no substitute for politics.
We have already heard a great deal about the likelihood of this or that outcome in the coming battles over Scalia’s replacement. These prognostications are as irrelevant to the Left as they have always been.
Why obsess over a ninth justice? Why have nine at all? Why reward the Court with as much deference and respect as its justices assume they will always receive?
The Supreme Court is a bulwark of reaction. Its brief is to maintain the institutional boundaries drawn by the Constitution, a document conceived out of fear of majoritarian democracy and written by members of a ruling class acting in brazen self-interest.
Progressive outcomes are rare at the Supreme Court, an institution that has historically functioned to impede attempts to expand public power and democratic control.
The Court was a bastion of moderate liberalism for a short time in the middle of the last century. But this did not occur because the Court is naturally a “forum of principle,” as the philosopher and apologist for antidemocratic elitism Ronald Dworkin once declaimed (and as so many liberals fondly imagine). Rather, the liberal Warren Court was the product of a specific conjuncture of social forces not likely to be seen again.
We should not chase after the fantasy of exploiting Scalia’s absence to reconstitute a liberal-majority Court — and not merely because any possible Democratic president in 2017 is likely to lack the political support needed for successful judicial appointments.
We should instead explore and promote options that would subordinate the Supreme Court to political control. Now is the right moment to dream of a chastened Court and to envision how that dream may become a reality.
Curbing the Court through political action was hardly uncommon before the twentieth century. It was only then that judicial supremacy — the doctrine that the Court is the sole authoritative expositor of constitutional probity and meaning — took hold.
Earlier on, unhappy Congresses and presidents pursued a variety of means for venting their displeasure with the courts. In the republic’s infancy, Congress was frequently at odds with the federal judiciary, going so far as to disband circuit courts and delay a Supreme Court term. In 1804, the House of Representatives impeached Justice Samuel Chase, only to have the Senate later acquit him — setting the first of many unfortunate precedents for political non-interference in the Court’s business.
Through the Judicial Circuits Act of 1866 and the Judiciary Act of 1869, a Republican-dominated postbellum Congress kept Andrew Johnson from nominating a tenth justice and then capped the number of justices at nine. There’s nothing magical about the number. The text of the Constitution does not specify the size of the Court. The practice of staffing the Court with nine and only nine justices is “just one more wobbly convention.” And conventions may be altered or discarded altogether.
Today, an enthusiasm for court-curbing legislation is often dismissed as fanciful or illegitimate. For this, the ideology of judicial supremacy may be thanked — not giving the Court the final say over the constitutionality of legislation is unthinkable.
Opponents of court curbing frequently point to Franklin D. Roosevelt’s Court-packing plan, announced on February 5, 1937, shortly after his landslide reelection. Roosevelt asked Congress to enable him to appoint six new justices, one for every current justice who happened to be older than seventy and a half. So expanded, the Court would no longer invalidate key New Deal legislation on the basis of tendentious, reactionary reasoning. Although Roosevelt was able to cultivate support for the proposal within his own party, conservatives were aghast and accused him of subverting the constitutional order.
Today, Roosevelt’s plan is frequently discussed as a failure or worse — a dangerous threat to the principle of judicial independence. In the eyes of conservatives, the “switch in time that saved nine” — the Court’s 1937 abandonment of laissez-faire doctrines — was the ultimate proof of the New Deal coalition’s unconstitutional radicalism.
But the fabled about-face — Justice Owen Roberts’s apparent change of heart about the constitutionality of minimum-wage legislation in West Coast Hotel Co. v. Parrish, announced on March 29, 1937 — does not seem attributable to Roosevelt’s plan. At the time, many believed that the Court had caved after receiving pressure from Roosevelt. However, evidence suggests that Roberts had made up his mind in the previous year.
It is also commonly said that Roosevelt overplayed his hand and was ultimately outmaneuvered and overtaken by events. The Court stole a march on him in West Coast Hotel and undermined his political support in the process. Subsequent judicial ratification of specific pieces of New Deal legislation came about through his appointment of several friendly justices, this line of argument goes, rather than cowing the Court through a public showdown.
So did Roosevelt err, and was he unwise to threaten the Court’s vaunted independence?
The plan was certainly clumsy. Roosevelt would have been wiser not to claim he wanted to make the superannuated justices’ jobs easier by appointing six new colleagues to assist them. But it was not a scheme hatched by an executive insufficiently aware of limits to his persuasiveness or to the powers of his office.
Roosevelt had been empowered through his election and his leadership of a national political coalition (a ramshackle and racist coalition, to be sure) to pursue the wholesale reform of social policy. Against the reforming efforts of the New Deal coalition, the conservative justices defended an imaginary constitutional order, in which private property in the means of production and capital-friendly labor relations were the crowning glories of American political development.
Roosevelt’s proposal to reform the Court was not simply a warning to the conservative justices. It was programmatically linked to his party’s pursuit of interventionist social policy. Roosevelt’s co-partisans dominated both the House and the Senate. Far from being a dead letter, the court-packing plan was very much a live issue, and press accounts from the time suggest both that its opponents were not convinced it would fail, and that Roosevelt was not making an idle threat.
As legal scholar Barry Friedman argues in his study of the relationship between public opinion and the Supreme Court, “contemporary evidence suggests powerfully that had the Court not switched, the public would have supported disciplining it.”
Nor was West Coast Hotel an isolated event. Even before any of the conservatives retired from the Court, it handed down favorable decisions on the constitutionality of the National Labor Relations Act and aspects of the Social Security Act.
We may never know if Roosevelt’s Court-packing plan compelled the Court to acquiesce to the New Deal, or if internal debates among the justices presaged a doctrinal shift even before Roosevelt’s reelection in 1936. But the outcome of efforts to make major public policy changes should not be held hostage to the cloistered deliberations of nine jurists — or any number of them.
Fighting over a scarcity of Supreme Court seats is a losing proposition and a waste of attention and organizational capacity. Creating lasting political change requires both organization and mobilization. All successes are temporary, requiring further collective action to consolidate and extend them.
Instead of joining in the farce that is the nominations process, the Left should exploit the current moment. It’s time to revive and defend court curbing. Packing the Court, stripping its jurisdiction, refusing to replace deceased or retiring justices, weakening the Court’s control over its own docket, instating judicial retention elections, empowering Congress to overturn Court decisions that invalidate federal legislation — all of these are possible tools to subordinate the Court to political control.
The suitability of any one of them would naturally depend on the situation. None of them would permanently solve the problems judicial review poses for democracy, nor would they render continued political struggle unnecessary. Many of them would require acts of legislation, or even constitutional amendments that appear out of reach at the moment. But as the current contest for the Democratic nomination suggests, patient organizing can make outcomes possible that are outside the expectations of established elites.
Objecting that curbing the Court invites conservatives to do the same misses the point. No reform or alteration of the Court would be a lasting accomplishment requiring no further maintenance; every political victory must be followed up by further demands. Nor should we believe that conservatives would be unwilling to transform the Court if it suited their purposes. For decades, movement conservatives have not shied away from pursuing their desired political ends by transforming institutions.
But instead of the liberal “cult of constitution worship,” we need ambitious political projects — including those that involve confronting the most naturally and intrinsically conservative institution in the American political system.
Scalia’s death does not render the conservatives on the Court powerless in a single stroke. The grim outcomes predicted for the present term will merely be delayed, not deferred; many liberals will continue to be distracted by the majesty of constitutional law and dismiss radicalism out of hand; and the Court’s capacity to interfere with democratic politics will remain undiminished.
The current eight-seat bench will become politically consequential only if the Left can use it to argue for a thorough restructuring of the Court, its powers, and its role in the federal government.
Imagine, for example, that this November sees the election of a Democratic president, one who claims the mantle of America’s fugitive tradition of social-democratic politics. What would he have to gain by playing the conventional judicial nominations game? Or if he did play it, why should he ask for only one more justice?