Constrain the Court—Without Crippling It
The mounting drumbeat of verbal assaults on the US Supreme Court, including some I have launched myself, has reached a crescendo that finds otherwise sober analysts secretly (and sometimes not so secretly) cheering every new outrage. Some of the justices are recklessly contributing to the growing disrespect for the Court as an institution. That disrespect stems in part from ethical scandals but in part, too, from the vast gulf between this Court’s substantive understanding of the Constitution, as well as its approach to the task of judging, and the vision of both those matters shared by the great majority of Americans. The growing consensus, not just among liberals but even among many conservatives, that the Supreme Court has lost its claim to legitimacy—a consensus epitomized in an opinion piece headlined “Clarence Thomas Can’t Undermine the Legitimacy of the Supreme Court Fast Enough”—makes even a critic like me sound the alarm: Be careful what you wish for!
Over the past few years, vulnerable democracies such as Hungary, India, Poland, and Israel have struggled to protect their independent judiciaries from political influence and to preserve them as checks against an unbounded concentration of power. In Israel, for example, as the far-right government has moved to reduce the power of the country’s Supreme Court, moderates and liberals have protested passionately. They have no illusions that the court has invariably protected minority rights or that its curbs on the government’s policies in the occupied territories have been the norm rather than the exception. But they recognize the danger in disarming it altogether.
The United States faces a similar tension between entrusting power to an independent judicial tribunal that preserves the guardrails of government under law and keeping that power from becoming a threat to fundamental human rights, representative government, and the protection of minorities. Among the most notable of a growing number of books voicing concern with an increasingly imperious judiciary is Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences, Joan Biskupic’s detailed account of the Court’s rightward shift. That shift was cemented, as Biskupic demonstrates, by Donald Trump’s appointment of three justices handpicked by the hard-right Federalist Society for their regressive (not merely conservative) stances on abortion, affirmative action, gay rights, guns, Congress’s power to delegate authority to the executive branch and independent agencies, and government support for religion.
The author of award-winning biographies of Chief Justice John J. Roberts Jr. and Justices Antonin Scalia, Sandra Day O’Connor, and Sonia Sotomayor, Biskupic is no partisan firebrand. But she pulls no punches in arguing that the Trump presidency helped shape a Supreme Court that has become nakedly nonjudicious, increasingly partisan, and aggressively antiliberal, issuing decisions based on cherry-picked historical data and conservative dogma. “The Trump effect,” she observes, “especially in terms of the individuals chosen and the resulting shift in the balance of power, has been incomparable. He is gone and they are here for life.”
Biskupic is most scathing in her criticism of Dobbs v. Jackson Women’s Health (2022), which struck down the right to abortion. She foreshadows her focus on Dobbs—which I criticized in these pages —with an introductory chapter on the Supreme Court’s astonishing decision in Whole Woman’s Health v. Jackson, decided six months before Dobbs overruled Roe v. Wade (1973). In Whole Woman’s Health, a bare majority of the justices let a Texas ban on abortions beyond six weeks go into effect despite its indisputable illegality under the nationwide standards that supposedly still bound all legislatures under Roe. To make matters worse, the Texas ban was deviously designed to transfer enforcement from state officials to bounty-hunting private citizens—vigilantes—to make it more difficult to challenge in any court.
While Dobbs was predictable, the majority’s dismissive tone and its cavalier insistence that its predecessors’ understanding of the Constitution was manifestly inferior to its own were nonetheless jarring. The Court’s opinion, notoriously leaked in virtually final form two months before its official announcement, accused the 7–2 majority in Roe, drawn from both political parties—and more than a dozen justices over the decades—of having erred too egregiously for their views to be taken seriously, much less to merit thoughtful rebuttal. Justice Samuel Alito’s majority opinion, Biskupic observes, was
stridently written, an audacious dismissal of a fundamental right granted nearly a half century earlier. [His] historical sources were both strange (reaching back to English law that treated a woman who undertook abortion as a “murderess”) and limited.
Most unsettling to Biskupic is the way in which the Court’s new majority jettisoned a long-standing precedent that entrenched basic rights of privacy, equality, bodily integrity, and personal autonomy and based its ruling on nothing beyond fiat, couched as ex cathedra (and all but expressly religious) disagreement with Roe and the decisions that had preceded and followed from it.
In that light, the partisan nature of the Dobbs ruling was unmistakable and arguably without precedent in the Court’s history. Three of the justices who made overruling Roe possible—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were appointed by a president who openly said he had selected them for that purpose, a point the joint dissent by Justices Stephen Breyer, Elena Kagan, and Sotomayor took the unusual step of saying out loud: “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed…. Today, the proclivities of individuals rule.”
This eagerness to discard precedent simply because those so inclined finally had five votes to do so was evident in so-called shadow docket opinions—issued on an accelerated schedule, without anything resembling full briefing by the parties or the formality of oral argument, and often with little that could properly be described as an explanation of the Court’s reasoning—striking down various Covid restrictions. One brief opinion, Tandon v. Newsom (2021), held that California’s temporary ban on indoor at-home gatherings had to exempt religious meetings if it continued to exempt activities (like shopping) outside the home, regardless of state health officials’ reasonable conclusion that the latter posed less risk of disease transmission. As Biskupic notes, that 5–4 ruling, issued at midnight without briefing or argument, “introduced a new level of favoritism for religious activities and government accommodation.” In this and other recent decisions, the Court rejected a decades-long understanding among Americans that the Constitution requires a separation of secular from religious power.
Biskupic also chronicles the Supreme Court’s increasing hostility to economic and environmental regulations and to relaxations of financial obligations that the conservative justices oppose as a matter of policy, as well as to administrative expertise more generally. Since Justice Barrett’s arrival in 2020, the six conservatives have limited the federal government’s power to implement manifestly sensible measures to combat a once-in-a-century pandemic, striking down the Centers for Disease Control’s eviction moratorium and the Labor Department’s requirement that companies with one hundred or more employees require vaccinations or weekly testing.
Biskupic writes that “past GOP-appointed justices, even with their aversion to big government and interest in protecting business, often deferred to regulators overseeing their specialized fields.” In contrast, these conservatives rejected the agencies’ authority to issue emergency regulations on such a “major question” despite the fact that both agencies relied on statutes expressly giving them broad authority during public health crises. As a culmination, the Court flipped the presumption of deference owed to agencies, concluding that the Environmental Protection Agency could not implement a plan to reduce coal dependence—any plan to do so, evidently, because no particular plan had been promulgated at the time of the ruling—on the wobbly and judicially invented basis that issues of such “political and economic significance” were too “major” to fall within the literally applicable statutory authority that Congress had lacked the foresight or the political will to make more specific.
As a result Congress is required, not just going forward but in laws enacted decades before this new dispensation, to be clairvoyantly precise about each agency’s exact scope of authority, which is difficult if not impossible when giving agencies broad power to tackle unforeseen threats. This judge-made “major questions” doctrine has the effect of stripping power not only from agencies but from Congress as well. It thereby concentrates power in the hands of the Supreme Court, which increasingly fits the frequently overused moniker of “imperial.”
While Biskupic is forthright in excoriating the newly empowered majority for reversing decades’ worth of precedent in decisions like these, there is less to admire in her efforts to grapple with the historical origins and substantive merits of competing views on the hotly contested issues she addresses. She dispassionately describes but doesn’t exactly dissect the views of Justices Thomas and Ruth Bader Ginsburg in a 2020 case concerning access to contraceptives, and devotes pages to how Chief Justice Roberts changed his mind and supplied the decisive fifth vote to prevent the Trump administration from putting a citizenship question on the Census. Biskupic’s sourcing is impressive, and her “inner sanctum” anecdotes are gripping and often entertaining, but she provides little guidance to help readers evaluate the deeper implications and thus the merits of the reasons the justices offered for their conclusions.
Also missing from Biskupic’s book is any sense of how much of the Supreme Court’s history has been marked by what today appear to be shockingly reactionary and even repressive decisions. There is nothing about its infamous rulings in cases like Dred Scott v. Sandford (1857), holding that Black Americans could never become citizens and had no rights that whites were bound to respect; or Giles v. Harris (1903), holding that the Court lacked any authority even to entertain a challenge to a state’s complete disenfranchisement of Black citizens despite the Fifteenth Amendment; or Lochner v. New York (1905), stripping states of the capacity to regulate sweatshop working conditions; or Hammer v. Dagenhart (1918), depriving Congress of the authority to forbid the interstate sale of the products of child labor; or Buck v. Bell (1927), sustaining the compulsory surgical sterilization of women of supposedly substandard intelligence; or Korematsu v. United States (1944), upholding the forced removal of loyal Japanese Americans from their homes after Pearl Harbor.
Someone whose image of the Court’s place in our history is that of a largely benign and sometimes heroic institution could be forgiven for concluding that what Biskupic’s subtitle calls “the Supreme Court’s drive to the right” is a relatively new phenomenon. With the best of intentions, she plays to an outdated conception of the Court until recently held by many Americans. This “generational nostalgia,” as Michael Waldman calls it in The Supermajority, stems from the long-standing veneration that the Court and many individual justices received from legal elites, including those who closely follow the Court as journalists, and the broader American public alike.
However misplaced such reverence may have been—and Waldman’s book devastatingly demonstrates that it was profoundly misplaced from the very start of the Court’s history—the current Court has made clear that even the judiciary’s legitimacy as the law’s highest expositor cannot be presumed. The downside of Biskupic’s examination of the Trump years with microscopic intensity is the potential for glossing over the Court’s troubling history of undermining political equality and human rights, which long predates the Trump administration. In Waldman’s better-balanced and more factually grounded telling, that history serves to illustrate how judicial supremacy—the idea that, beyond being responsible for reviewing and resolving the competing legal claims of the parties before it in any particular controversy, the federal judiciary in general and the Supreme Court in particular bear ultimate responsibility for authoritatively interpreting the Constitution and laws of the United States—has been incompatible with the advancement of individual rights.
When I taught constitutional law, I would explain to my students in considerable detail how the Supreme Court, when performing its historic function in the design of our political and legal systems, had often been a champion of equal opportunity, inclusion, respect for personal autonomy, and privacy. Its broadly understood and widely respected authority often served, I would assure my students, to deter Congress, the president, the federal agencies, and the scores of state and local legislative, executive, and judicial officials from riding roughshod over our rights.
Lawyers of my generation came of age while Earl Warren was chief justice, when the story I told my students seemed to contain much truth. But it has since become increasingly clear that the era of the Warren Court—roughly from 1953 to 1969—was the exception rather than the norm. Today, building on the conservatism of the Court during the chief justiceships of Warren E. Burger and William H. Rehnquist, the Court under Chief Justice Roberts treats all rights—other than those it purports to discover in the Second Amendment and in selected aspects of the Free Speech and Free Exercise of Religion Clauses of the First Amendment—with extreme hesitation and often with derision.
At the same time, as both Biskupic’s and Waldman’s books demonstrate, the current Court acts on what can only be called a shriveled view of equality under the law, in areas ranging from bodily integrity to voting rights and the way district lines are drawn for state legislatures and the House of Representatives. Allowing a Court with so narrow-minded and essentially retrograde a view of constitutional rights to continue to occupy pride of place in defining the promises of our Constitution risks rendering that document, and the democracy on which it rests, inoperable for the very people who need it most and as a charter for the republic I extolled to generations of students.
To be clear, judicial supremacy is neither woven into the Constitution’s text and structure nor discoverable in the history of its creation—a reality that today’s supposedly “textualist” or at times “originalist” Court conveniently ignores. Instead, as the Harvard Law School professors Nikolas Bowie and Daphna Renan have eloquently explained, judicial supremacy “took hold of American politics only after the Civil War, when the Court overruled Congress’s judgment that the Constitution demanded civil-rights and voting laws.” In his 2021 testimony before the Presidential Commission on the Supreme Court (on which I served), Bowie elegantly elaborated the degree to which it has been the justices who sat on the Court over most of its history who have, without so much as an attempted justification, seized that role for themselves and used it to advance anything but an egalitarian vision. In Bowie’s words, “As a matter of historical practice, the Court has wielded an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth and status.”
The oft-invoked appeal to Brown v. Board of Education (1954) as testament to the necessity of judicial supremacy is not entirely convincing. Brown overruled Plessy v. Ferguson (1896), affirming the legality of separate but (supposedly) equal public accommodation for Blacks and whites. But what the Court did in Brown in 1954 was at least as much a demonstration of Congress’s protection of minority rights as of the Court’s enforcement of those rights. The Court was applying 42 USC § 1983, a federal law passed by Congress during Reconstruction that provided the means for bringing provisions of the federal Constitution and laws to bear on state officials. Cases expanding autonomy, dignity, and privacy like Roe and Obergefell v. Hodges (2015), establishing a fundamental right to same-sex marriage, also depended entirely upon § 1983 to strike down intolerant state laws. As Bowie and Renan note, these decisions “don’t represent judicial supremacy, but rather Congress’s ability to make and enforce national constitutional commitments.”
I have been persuaded by their argument—one also made convincingly by Waldman—that any satisfactorily revised conception of the judiciary as a protector of rights, particularly the rights of those lacking wealth and power, cannot be content to focus on the Supreme Court but must call on Congress to intervene by enacting statutes that provide new federal judicial avenues for protecting rights from abuse by federal officials in the way that § 1983 does with respect to abuse by state officials. Congress can also intervene by overruling Supreme Court decisions interpreting ambiguous federal statutes in ways that gratuitously contravene egalitarian norms.
More active participation by the people’s elected representatives in reinforcing federal legal protections will naturally reinject fears about the “tyranny of the majority” into what has traditionally been a decidedly antimajoritarian process of defining the Constitution’s protections and even those codified in congressional statutes. But urging Congress and, for that matter, state lawmakers and elected state court judges and justices to be more involved in defining and defending basic rights need not mean that the federal judiciary in general, and the Supreme Court in particular, would cease to define the limits beyond which politicians are forbidden to go—a function that, of course, presupposes the selection of federal judges and justices committed to it. Nor must those advocating an enhanced responsibility for the legislative branch concede that Congress and the Court need always be at loggerheads. Instead, as Waldman explains, the point is only that Congress has a larger part to play in supporting American democracy.
Unless Congress steps up to that challenge, we seem doomed to be ruled in the main by an institution that has long obstructed rather than facilitated democratic progress. In Overruling Democracy: The Supreme Court vs. the American People (2003), the law professor Jamie Raskin—now a distinguished member of the progressive but pragmatic wing of the congressional Democrats—chronicled the Rehnquist Court’s opposition to virtually any measure expanding democracy. He astutely dissected the line of decisions in which it sanctioned state laws that diluted the votes of people of color, rejected attempts to overcome historic disenfranchisement faced by Black voters in the South, and turned away challenges to taxation without representation advanced by those who reside in our nation’s capital. Raskin argued that “the urgent project of our time is to free popular democratic politics from the stranglehold of the Court.” He reserved his harshest critique for the “slapdash job of interpretation” by the majority in Bush v. Gore (2000), which reflected the Court’s historical reluctance to find in the Constitution’s text or its interstices anything resembling a broad “federal constitutional right to vote.”
Raskin was prescient. In the twenty years since he wrote his book, the Supreme Court has only grown more hostile to democratic participation. In just the past decade, as both Biskupic and Waldman discuss in detail, it gutted the Voting Rights Act to enable voter suppression in the South, upheld voter photo identification laws, condoned purges of voter rolls, enabled partisan gerrymandering, and obliterated campaign finance reform. Decisions over the past three years have accelerated this trend: the Court has opposed deadline extensions and other voting accommodations during the pandemic and upheld state laws that have almost certainly intentional racially discriminatory effects on voting.
A limited reprieve came this year in the form of two decisions: Allen v. Milligan, a 5–4 ruling upholding the application of the Voting Rights Act to require Alabama to create an additional majority-minority congressional district (and upholding the act’s constitutionality in that case despite its explicit use of race), and Moore v. Harper, a rejection by a solid Supreme Court majority of the dangerous and utterly implausible theory that state courts and constitutions have no jurisdiction over the decisions of state legislatures in drawing district lines and selecting slates of presidential electors. Sadly, observers who interpret this pair of decisions as evidence of a longer-term readjustment of the Supreme Court’s antidemocratic attitude are most likely fooling themselves. My strong sense is that the trend in the decisions of recent decades has been briefly interrupted, not broken, and that that trend represents the logical extension of a handful of justices’ veritable war against voting rights. It is a war one presumes they either conceal from themselves—as true believers in the myth that they are mere vessels for legal doctrines that they passively transmit—or justify to themselves as logical reflections of principled beliefs about who deserves to belong to “We the People.”
The current and historical excesses of judicial supremacy, and the growing realization that this supremacy has over time served more to entrench the power of the haves than to bestow power upon the have-nots, have inspired a growing chorus of progressive constitutional scholars to rethink the centrality of the Supreme Court in our governance. Their basic message is that we mustn’t mythologize the Court as a paragon of principle standing up for the downtrodden and dispensing justice without fear or favor across the long arc of American history. It has largely been anything but.
But it would be no less a mistake, as we rethink the Supreme Court’s responsibilities, to equate the current Court’s abject, transparently nonjudicious, and corruptly unprincipled behavior with the practices of any predecessor Court. I believe we have never seen a Court so blatantly determined to move the nation in an ideologically predetermined direction without being even slightly constrained by law or logic.
Something is badly amiss when a judge as savvy as Justice Kagan, delivering a dissent orally from the bench for only the fourth time since she joined the Supreme Court in 2010, accuses six of her colleagues not just of erring but of acting in a way that “violates the Constitution” by striking down the administration’s student debt relief program in Biden v. Nebraska. The Court, she said, was blowing “through a constitutional guardrail intended to keep courts acting like courts” by “wielding the major-questions sword, last Term and this one,” to override “the combined judgment of the Legislative and Executive Branches” in order to eliminate “loan forgiveness for 43 million Americans.” She pointedly noted, without meaningful response by the majority, that her colleagues were doing so in a case that was “not a case” at all. The parties suing the president were “six States that have no personal stake” in the loan forgiveness plan but were “classic ideological plaintiffs” who happened to “think the plan a very bad idea” and who gambled that the Supreme Court as currently composed would share those policy preferences and eagerly impose them on the branches our Constitution assigns to arbitrate “political and policy disputes.”
Writing for the majority, Chief Justice Roberts decried as a “disturbing feature of some recent opinions” the dissenters’ description of “decisions with which they disagree as going beyond the proper role of the judiciary,” because it “would be harmful to this institution and our country” for “the public” to “mistake this plainly heartfelt disagreement for disparagement.” But the chief justice’s complaint was misdirected. The problem wasn’t that Justice Kagan was saying the quiet part out loud. The problem was that she was obviously right. Both in the loan forgiveness decision and in the antidiscrimination decision the Court handed down on the same day, it was reaching out to resolve “cases” it had all but created on its own in an unmistakable display of zeal to impose its political and social views on the nation.
It did so in the loan case by pretending that at least one of the parties before it had legal “standing”—a genuine stake in the outcome—when none in fact did. And it did so in 303 Creative LLC v. Elenis by offering a designer with a wedding website an advisory opinion to “clarify her rights” and relieve her “worries” that, were she to discriminate against same-sex couples who wished to marry, she might run afoul of Colorado’s antidiscrimination law. As Justice Kagan wrote in the loan case, no court employing “the traditional tools of judicial decisionmaking” would have acted that way.
Reading just the last few decisions of the past term, one can almost hear the sound of hairs being split as the Court disassembled ordinary statutory language in order to reach the conclusions it obviously wanted to reach about the act of Congress authorizing the executive branch to “waive or modify” any “student financial assistance.” One can almost hear deeply rooted principles against building caste into our laws and against rendering purely advisory, hypothetical opinions on behalf of parties not claiming any concrete injury come crashing down in the Court’s decision diminishing the rights of LGBTQ people, which Justice Sotomayor, writing the dissent for herself and Justices Kagan and Ketanji Brown Jackson, rightly described as “quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.’”
And one can hear the protests of generations of Americans, slave and free, as the Court, in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, rewrites the history of our country’s painful engagement with race and pretends that fidelity to the original meaning of the Reconstruction Amendments compels it to end race-based affirmative action and to insist with “let-them-eat-cake obliviousness,” as Justice Jackson wrote in her dissent for herself and Justices Sotomayor and Kagan, that “deeming race irrelevant in law” will “make it so in life.”
So the case for institutional reform and for structural change made by scholars like Bowie and Renan must be fine-tuned to reflect the chilling reality that what we are now witnessing is neither normal nor inherent in our political architecture. But those scholars have yet to deliver anything resembling a detailed plan for reform that will be both politically sustainable and designed to minimize unintended consequences that could well imperil the stability and uniformity of federal law across the fifty states.
It is one thing to nod approvingly when Bowie and Renan argue against a formalistic separation of powers in which the judiciary has the final say on the Constitution’s meaning and in favor of a “republican” sharing of functions in which “Congress and the President, working through the interbranch legislative process, should decide whether any particular institutional arrangement is compatible with the Constitution’s separation of powers,” or when Professor Samuel Moyn of Yale Law School similarly highlighted the dangers of judicial supremacy during his 2021 testimony to the Presidential Commission on the Supreme Court. It is quite another to embrace Moyn’s view that “disempowering our constitutional judiciary for the long term is the opportunity that reformers should seize.”
Unlike proposals to replace life tenure for federal judges with nonrenewable term limits, which have broad popular support and might even be accomplished legislatively without amending the Constitution; and unlike proposals to enlarge the Court to thirteen seats from the nine allotted to it by statute in 1869 and unchanged since—a move that would definitely be achievable by legislation alone and that I view as both justified and necessary in light of the entrenched character of the uniquely unprincipled current supermajority—cures of the more radical sort that Moyn and, to an uncertain degree, Bowie and Renan appear to favor could prove worse than the disease. When Moyn suggests that Congress “restore the institution to a sensible position in our constitutional order” by stripping the judiciary of the power to hear certain kinds of cases, imposing a supermajority threshold for invalidating a statute on constitutional grounds, or requiring congressional ratification of any Supreme Court invalidations of federal law, he proposes a leap into the unknown that I am glad seems all but impossible to pull off.
The impulses behind the proliferating proposals to counter the Supreme Court’s bloated and benighted rule over American life are understandable. Its insulation from even informal accountability to public sensibility, scientific progress, and competing perspectives creates the danger of vast power reposing in the hands of individuals who might have strong ideological and even religiously driven commitments profoundly out of step with egalitarian and inclusive values. But I continue to believe that to preserve the rule of law and avoid putting unchecked power in the hands of potentially corrupt, self-interested, or faction-driven politicians, we must entrust an independent checking function to some set of individuals who are insulated from the shifting winds of popular opinion and shortsighted political passions. They must be committed to principled resolution of contested questions that will often mix law with politics, freed of the pressures of potential reprisal, and, perhaps above all, sensitive to their own fallibility.
An exclusive focus on the dangers of a right-wing, interventionist Court also ignores the arguably even greater risks of an autocratic president who grabs and refuses to let go of power. It takes little imagination to see the threat posed by leaving the executive branch, especially with its control of the military, unchecked by an independent and potent judiciary, especially when considering many of the broad grants of authority that Congress has entrusted to the presidency in a wide array of national security matters. As Justice Robert Jackson observed during the Korean War, “comprehensive and undefined presidential powers” can pose “grave dangers” to the rule of law.
Cases like those involving the exclusion of Chinese immigrants in the 1880s and 1890s, the forced relocation and internment of Japanese Americans in the 1940s, and the exclusion of Muslim immigrants during the Trump presidency highlight the Supreme Court’s troubling indifference to the plight of unpopular minorities and its greenlighting of racial and religious discrimination in the name of national security—just as it most recently gave its blessing to discrimination based on sexual orientation in the name of free speech. But the xenophobic, Islamophobic, and homophobic policies at issue in these cases also show how the executive branch can be lethal to civil liberties and why striving for a Supreme Court principled enough to do better by minorities seems a far better path to pursue than abandoning the idea of an independent guardian of them ever could be.
For all its failings, our Supreme Court has occasionally been such a guardian, as when it changed course in 1943 to protect Jehovah’s Witness children from being expelled from public school for failing to pledge allegiance to the American flag in West Virginia State Board of Education v. Barnette. Even during the Trump administration, the Court blocked the Department of Commerce from putting a citizenship question on the Census and prevented the Department of Homeland Security from rescinding the Obama administration’s Deferred Action for Childhood Arrivals program for failure to adhere to the proper administrative procedures. As the former Justice Department official Michael Dreeben put it in a recent article about Israel’s judicial crisis, “When democracy hangs by a thread, too deep inroads on judicial independence may cut that thread.” Too far an overcorrection invites an equally dangerous alternative.
A disempowered Supreme Court could also lead to even more blatantly unconstitutional state action than what the current Court has shamefully upheld. If it were unable to prevent a state from declining to enforce federal law, then the one “supreme Law of the Land” as described in the Constitution’s Article VI would no longer apply. This is why the Court’s 2021 holding that Texas could circumvent the Constitution by deputizing private citizens into a vigilante army charged with enforcing the state’s draconian abortion ban deserved condemnation, as Justice Sotomayor wrote in her dissent, as a “dangerous departure” from the idea that “federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review.”
If the Supreme Court were unable to vindicate federal constitutional rights in cases arising in the state courts, those courts could routinely nullify such rights at will, just as slaveholders argued they could in the antebellum period. As Oliver Wendell Holmes asserted when endorsing federal judicial review over state court decisions enforcing federal law:
I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.
And restricting the ability of the Supreme Court (and presumably the lower federal courts as well) to render definitive judgments about the meaning and constitutionality of acts of Congress or of federal agency regulations, either across the board or in particular categories, would leave the highest courts of the fifty states with the last word on those questions, creating an untenable patchwork quilt of answers to questions that manifestly require a single answer for the nation as a whole. Neither Bowie and Renan nor Moyn has yet to focus, at least publicly, on those problems, but until they are addressed adequately, the idea of disempowering the Supreme Court remains too cloudy to be of great utility.
The impulse to reduce the Supreme Court’s centrality in American life must thus be taken as at most a starting point for a broad and complex political project. It also seems plain that just tinkering with the details of how the Court operates, including reforms of the ethical codes that should bind the justices no less than they bind others throughout the government, fails to get at the heart of the problem with giving an inherently political but politically unaccountable body such sweeping power. No other highest court in any other constitutional democracy gives nearly so much power to so few people over the meaning of a body of law that is so difficult to change through democratic means.
A larger but more challenging part of the solution is making the Constitution less difficult to amend—such as by lowering Article V’s requirement for proposing an amendment from two thirds to three fifths of Congress and its requirement for ratifying an amendment from three fourths to two thirds of the states. Or lowering Article V’s requirement for calling a new convention for proposing amendments from the current two thirds of the state legislatures to three fifths of those bodies. Perhaps political momentum for so dramatic a reform could be built around the Court’s failure to protect voting rights or its reversal of a half-century of progress in protecting women’s rights, the rights of racial minorities, and rights of bodily autonomy and personal privacy, and around the goal of making antidiscrimination more than an aspiration.
It may seem to be asking a great deal to expect a judicial body accustomed to having the last word on all matters of federal law and constitutional interpretation to loosen the reins somewhat. The difficulty, apart from the reluctance of institutions to voluntarily cut back their own power, is that this call for self-sacrifice would be issued in the name of democratizing the legal and political system of the United States. And to put it bluntly, it is alarming how confidently, and often angrily, the justices in the current Republican majority—and we mustn’t mince words here: the justices I’m talking about have all been appointed by Republican presidents—have acted in pursuing their antidemocratic ends. The arrogance dates back over two centuries and cuts across the ideological spectrum, but its weaponization in support of an antidemocratic project is strictly right-wing and distinctly novel.
This problem of overconfidence serves as the central theme in Aaron Tang’s Supreme Hubris: How Overconfidence Is Destroying the Court—and How We Can Fix It. Tang describes the Court’s self-assuredness as its central problem. Today’s Court—unlike the Warren Court, which for instance conceded that the Miranda warnings were not necessarily required by the Constitution—displays virtually no humility when rendering its judgments, suggesting confidently that deep-seated controversies in areas like abortion, affirmative action, gun control, and the future of the administrative state can all be “lawyered through” using a preferred method of interpretation like originalism. Flowing from this overconfidence, as Tang would have it, are opinions that frequently lack even minimal regard for their real-life consequences or even for opposing arguments, leaving those who disagree with the rulings little from which to derive much respect for the institution of the Court itself.
I find it difficult to disagree with any of Tang’s descriptions or with his diagnoses, including his skepticism that term limits, supermajority requirements, or other structural changes will ensure a rise in judicial modesty, but I must have missed the part describing how such a rise can be secured. Tang seems convinced that those concerned with the Court’s self-inflicted wounds can somehow persuade the justices—perhaps by threatening to strip them of jurisdiction—to act more incrementally and with greater humility. I doubt it.
The current right-wing supermajority’s immodesty—and the low value it places on traditional procedural mechanisms designed to ensure thoughtful and broadly informed deliberation—seem particularly stark when the Court takes what can only be described as shortcuts to end programs and policies that it finds ideologically objectionable. As Stephen Vladeck acknowledges in The Shadow Docket, the Court has historically employed abbreviated filtering mechanisms—from unexplained, one-line denials of discretionary review (“certiorari,” in legal parlance) to relatively arcane tests for deciding who may invoke the decision-making authority of the federal courts (who has “standing”)—to turn away the vast majority of petitioners’ cases without any consideration of who has the better argument on the merits of the legal issues in question, let alone full briefing and argument.
At the other end of the spectrum from such decision by nondecision, we find decision by barely explained summary reversals of lower court rulings, which come like bolts from the blue to parties given no notice that their cases might be among the dozens lifted from the typical yearly mass of thousands for sudden grants of certiorari and are followed by no briefing or oral argument beyond the bare petition seeking the Court’s attention and an opposition brief urging the Court to deny review altogether. Such dispositions—whose uptick a little over half a dozen years ago led the law professor William Baude to borrow the term “shadow docket” from a Texas appellate lawyer, Pamela Baron—are objectionable to Vladeck both because they “short-circuit the Court’s normal process” and thereby risk being ill-considered, and because they tend to offer little guidance to the bar or to the public.
It is unclear whether Vladeck is upset mostly by the opacity and lack of public accountability or even careful deliberation that seem to attend the way much of the Court’s agenda is implemented through inaction or through barely explained and certainly not openly reasoned action; or by the right-wing agenda in whose service this lack of transparency has been deployed of late; or by the increasingly transparent hypocrisy with which doctrines that live mostly in the shadows are being deployed. I suppose “all of the above” would be a fair answer. At all events, the Supreme Court’s highly technical, quite opaque, and readily manipulated standing doctrine seems especially vulnerable to the charge that it has been deployed mostly to advance the ideological proclivities of the right-leaning majority and often of the most extreme wing of that majority.
However, the main story that Vladeck wishes to tell is how the Court’s current procedures lack transparency as to the reasons for reaching the outcomes the Court does. Representative rulings include the Court’s decision to grant emergency relief (and shift standards of judicial review) during the Covid-19 pandemic, its willingness to entertain the Trump-era solicitor general’s “aggressive” use of emergency requests for relief, and its last-minute interference in significant election disputes through the use of its 2006 precedent Purcell v. Gonzalez (which defined standards the Court would use to determine emergency election challenges). Vladeck’s work highlights how consistently and aggressively the Court, since Justice Barrett joined three years ago, has stampeded procedure to reach desired outcomes. Though that story has been told previously, Vladeck provides valuable evidence that this Court’s behavior is different in kind from those that came before it—in the procedures it uses to reach the results it seeks, but also in the speed and frequency with which it does so.
To counter this nakedly nonjudicious behavior by the Court, Vladeck proposes a modest set of legislative measures through which Congress could, without endangering the Court’s vital independence or compromising its capacity, significantly curb its use of the shadow docket, including the one feature that has become so familiar that most observers have come to treat it as inevitable: the Court’s completely discretionary power to decide which of the many thousands of petitions it will pluck from obscurity to consider on the basis of full briefing and argument.
Chief Justice William Howard Taft, pleading in 1925 for relief from a growing mountain of appeals, “cajoled Congress into giving the Supreme Court far more control over which cases it hears by expanding an obscure judicial practice known by the obscure Latin term certiorari”—a degree of control without which the Court would almost certainly not have achieved the vast influence over the nation’s affairs that it came to exert in the years that followed. As Vladeck wryly notes, certiorari is far from “the only way to prevent the Court’s docket from swelling beyond control. Among lots of other possible reforms, more justices could be added to handle the workload”—a change many reformers, me included, have advocated on other grounds—or “the Court could hear most cases in three-justice panels, as is the norm in the intermediate federal appeals courts,” or “Congress could add another layer of appeals courts to further reduce the strain on the Supreme Court.” It is with hard-headed suggestions like these, defensible without reference to ideology but attractive to many readers on admittedly ideological grounds, that Vladeck justifies his attention to “how procedural technicalities and formalities can produce massive substantive results.”
The Court’s low level of public esteem today means that marginal, process-focused reforms such as reducing the use of the shadow docket will be insufficient to reverse the course of the destabilizing forces currently driving our republic toward government of the few, by the few, and for the few. As attacks mount on America’s fragile democracy and on the foundation of human rights that has always been at best aspirational in our history, we cannot afford to rely on mere tinkering with the machinery of justice to hold back the darkness. The looming possibility that a tyrannical executive will seize authority in the coming years and that such an executive’s violent followers will not soon relinquish their hold on power—coupled with the ironic reality that an overconfident Supreme Court will prove so weakened by its own excesses that it will be unable to contain the forces of fascism—leave those of us who are unwilling to give up hope with our hands more than full. The work ahead cannot be left to judges alone, even with a Supreme Court enlarged and rebalanced so as to overcome its current waning legitimacy. It is, as always, work that belongs to us all.
Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus and Professor of Constitutional Law Emeritus at Harvard. His books include Abortion: The Clash of Absolutes, American Constitutional Law, The Invisible Constitution, and Uncertain Justice: The Roberts Court and the Constitution, cowritten with Joshua Matz. (August 2023)
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