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Judge Dread

Is the Supreme Court beyond repair?

The Supreme Court ended its term in June with liberals feeling relieved they avoided total defeat. There was a predictable setback when the court refused to take a stand against the extreme partisan gerrymandering that is crucial to the Republican Party’s hold on state and national power. Yet, at least the Trump administration’s blatant attempt to use the census to further the GOP’s political agenda was halted for now, as Chief Justice John Roberts wrote an opinion that more or less said to the administration, “If you’re going to lie to us, you’ve got to do better than this.”

Meanwhile, conservatives were fuming because they didn’t achieve total victory. Some on the right, hilariously, were demanding the resignation, or even the impeachment, of Roberts for his little half-step off the Trump train. The chief justice was already under suspicion for a ruling way back in 2012 when he voted with the court’s liberals to uphold the individual mandate of the Affordable Care Act. Now he had the temerity to reject the bogus reason that Trump’s Commerce Secretary Wilbur Ross offered for adding a citizenship inquiry to the 2020 census questionnaire—supposedly to better enforce the Voting Rights Act. As the court’s ruling delicately put it: “Altogether, the evidence tells a story that does not match the Secretary’s explanation for his decision.” Or, somewhat less delicately: Ross’s sole stated reason “seems to have been contrived.”

The real reason, of course, had surfaced in May from the hard drive of one Thomas B. Hofeller, deceased. The North Carolina political consultant—who had a hand in redistricting schemes in key states around the country—had concluded that what Republicans needed to skew voting districts even more in their favor was a count not of residents but of voting-age citizens. Putting a citizenship question on the census was the way to get the necessary data. And drawing maps based on the number of voting-age citizens “would be advantageous to Republicans and non-Hispanic whites,” he wrote in a 2015 analysis. This strategy was well known in Republican circles but, oddly, was not cited by Wilbur Ross in official pronouncements.

Conservatives were fuming because they didn’t achieve total victory.

Not all conservatives were renouncing Roberts, though. Radio bloviator Hugh Hewitt tweeted his view that the gerrymandering ruling was the more consequential one for the long haul. And he may be right. That ruling, which Justice Elena Kagan noted in her dissent shows the court “throwing up its hands” at a practice that “at its most extreme . . . amounts to ‘rigging elections’” is important for the prospects of the Republicans over the next ten years. The GOP has the full “trifecta” of control (both chambers of the legislature plus the governorship) in twenty-two states; Democrats have only fourteen trifectas. That could change in November of 2020, but the whole point of the district lines that were drawn after the 2010 census was to make legislative turnover as unlikely as possible.

The census debacle aside, the Roberts court has been consistently helpful to Republican efforts to distort the election system. Roberts led a 5-4 decision in June of 2013 to strike down a key provision in the Voting Rights Act that affected nine states with a history of discrimination. Within days of that decision, as former Attorney General Eric Holder recently wrote in the Washington Post, “conservative state legislatures unleashed a wave of unnecessary and discriminatory voter ID laws, voting roll purges and poll closures targeting minority and poor communities.” Roberts was also in the 5-4 majority of the Citizens United decision of January, 2010, which ruled that congressional attempts to regulate the influence of Big Money in elections were unconstitutional.

Yet the rationale in the court’s Rucho v. Common Cause decision last month was that the obvious problems of partisan gerrymandering “present political questions beyond the reach of the federal courts.” As historian Eric Foner observed in The Nation,

The idea that the Supreme Court does not have the authority to get involved in political matters would be laughable if the results of this decision were not so damaging. Was not Baker v. Carr, the one man-one vote decision of the 1960s, political? What about Bush v. Gore (2000), which decided the outcome of a presidential election?

The logic of the Roberts court in this instance is to say that certain breakdowns in democratic fairness (which are in Kagan’s words “the devaluation of one citizen’s vote as compared to others,” i.e., a violation of the Fourteenth Amendment’s Equal Protection clause) can only be corrected by the political process—while the process remains stacked against efforts to correct them. The court declines to find a way to make an available fix to the fundamental workings of the democratic system. All of which raises a related question: Can the political system find a way to fix the Supreme Court?

A surprising development in the current political season is that ideas about reforming the Supreme Court are entering the mainstream political discussion. That’s in large part thanks to Senate Majority Leader Mitch McConnell, whose diktat that Obama would not be allowed to fill an open court seat in early 2016 left Democrats seething. McConnell was able to decree that Obama’s choice, Merrick Garland, would not get a hearing, which ultimately led to Trump’s nominee Neil Gorsuch being appointed after the 2016 election.

One proposal to rectify that injustice is to expand the number of court seats once Democrats regain Congressional majorities and the presidency, a plan that calls to mind the famous “court packing” effort of Franklin D. Roosevelt in 1937. Because of the political backlash Roosevelt experienced, the idea makes many observers nervous. This spring New York University law professor Richard Pildes argued on the Balkinization legal blog that FDR’s effort to pack the High Court was “politically catastrophic” for the rest of his domestic agenda.

It’s not, Pildes notes, that FDR didn’t have good reason to be frustrated with the way federal courts were obstructing the New Deal. In the summer of 1935, over a hundred district judges declared acts of Congress unconstitutional, with well more than a thousand (and perhaps as many as three thousand) injunctions against New Deal efforts. The Supreme Court itself struck down several of the most important reforms of the day, including the National Industrial Recovery Act, the Agricultural Adjustment Act, and even state minimum wage acts that had long been on the books.

Yet even after a resounding FDR re-election victory in 1936, the reaction to his proposal to expand the court was immediate and powerful. “Even for the most popular President in modern political history—at the zenith of his popularity—changing the size of the Court for political reasons was widely viewed as a dangerous form of political over-reaching,” Pildes wrote. The implication was that if Democrats go down this road again they are unlikely to fare any better.

There’s something missing from that historical analysis, though. FDR skipped an important step: he hadn’t done the groundwork to prepare Congress or the public for his proposal. In a moment of hubris, he sprung it on the political system. It’s true he had huge Democratic majorities in Congress—but a sizeable bloc of Democrats were Southern conservatives who were not going to jump on board to give FDR even more power over national politics and jurisprudence.

The Roberts court has been consistently helpful to Republican efforts to distort the election system.

The question for today is whether candidates for president can begin to build support for some kind of reform that would change the way the Supreme Court functions. Court-packing, which has to be one of the most unfortunate names available for such reform, is not the only proposal worth considering. South Bend mayor Pete Buttigieg, for example, raised eyebrows early in his campaign with a forthright statement that something should be done about the Supreme Court. Unfortunately, he floated an ill-considered plan that has been roundly derided as unconstitutional—in which the court would have fifteen members, with five chosen by Democrats, five by Republicans, and then another five chosen by those ten justices. Buttigieg’s plan would require a constitutional amendment because as of now only the president has the power to appoint justices.

It would, in fact, be easier to increase the number of seats on the court, which Congress has the unquestioned power to do. Yet everything depends on making a strong public case for it—campaigning for it and attempting to build majority support. The less radical but perhaps more salable idea is to finally set up a system of term limits for justices. That’s the approach advocated by Fix the Court, a nonpartisan organization that bills itself “the only group in the nation working to open up the most powerful, least accountable part of government—the Supreme Court—by advocating for a few simple ‘fixes.’” Fix the Court launched a campaign for term limits for court justices this week, releasing a letter signed by sixty-three legal scholars that states that life tenure for justices “is no longer good public policy, if it ever was.”

A nonpartisan reform effort may be better than nothing, but it has a major disadvantage: it won’t be able to make the case to the public about the essential nature of the problem. It’s not just that some justices get ancient and stay too long.

It’s that we are stuck now with a court that is the result of specific episodes of democratic failure and thus is of dubious legitimacy in imposing 5-4 decisions on the country. George W. Bush lost the popular vote, benefited from Bush v. Gore, and was able to put two conservatives on the High Court, not to mention more than three hundred federal judges. Trump lost the popular vote and benefited from McConnell’s unprecedented partisan obstruction, and has already been able to appoint Gorsuch, as well as the ill-tempered “what goes around comes around” Brett Kavanaugh.

The Supreme Court is clearly now in position to overturn Roe v. Wade, presumably after the 2020 election. They may well have another chance to rule against the Obama-era health care law. But in the meantime, the Roberts court has a record of frustrating any attempt to improve the democratic life of the nation. The Atlantic’s Adam Serwer summed it up well last September under the title “The Supreme Court Is Headed Back to the 19th Century”:

The Roberts Court is poised to shape American society in Trump’s image for decades to come. All three branches of the federal government are now committed to the Trump agenda: the restoration of America’s traditional racial, religious, and gender hierarchies; the enrichment of party patrons; the unencumbered pursuit of corporate profit; the impoverishment and disenfranchisement of the rival party’s constituencies; and the protection of the president and his allies from prosecution by any means available.

That is the case candidates need to be making as they discuss the reform of the Supreme Court in the coming election season. And part of that task is to explode the Republican myth that they stand for justices who are neutral arbiters of what the Constitution means. This is the line that John Roberts used in his confirmation hearing before the Senate, claiming that “Judges are like umpires. Umpires don’t make the rules, they apply them.”

We are stuck now with a court that is the result of specific episodes of democratic failure.

That line has a strong hold on the American public, maybe because people want to believe it. And the Republicans have done a better job over recent decades in popularizing that idea about the importance of “neutral” judges faithfully interpreting the Constitution. Yet at the same time, who can really believe the current Roberts court is anything but partisan?

Well, there is one prominent leader who every once in a while blurts out the truth and cuts through the crap: Trump himself. He’s in the habit of blasting at judges who have ruled against him, blaming them as Obama or Clinton appointees. At one point Roberts attempted to steer the president back to the correct party line. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said in the rare conservative statement rebuking the president. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” he said.

Trump, of course, did not accept the correction, tweeting his response: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.” The president would be happy, no doubt, if “his” judges wore a cap that proclaimed “Proud to be a Trump Judge”—you just know he’d love to see his name emblazoned on the foreheads of Neil Gorsuch and Brett Kavanaugh. But if we don’t find a way to counter the Trump and Bush judges, we’re going to be stuck with an ever-more tilted playing field for a very long time.