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Court-Packing Isn’t the Left’s Only Threat to the Supreme Court

The Left’s threat to the pack the Court by expanding the number of justices seems to be unpopular. But they have proposed other policies that could disempower it, negating the role of conservatives on the bench.

Some of the policies are outlined by Yale law and history professor Samuel Moyn in a recent interview with Jacobin Magazine, the house journal of the radical left. As Moyn underlines, the central idea of democratic socialism is that the people should have collective power over every aspect of individual life (this is a central theme of my book, The Socialist Temptation). Protections for individual rights, they believe, should not weaken the powers of the people or their government, and judges shouldn’t be ruling on things that undermine the will of the people.

So Moyn suggests three tactics the Left should pursue. The first is to get rid of judicial review, the power to invalidate laws as unconstitutional. As Moyn implies, a democratic socialist should regard the passing of a law by a popular majority as constitutional in and of itself. Moyn calls this a “late development in U.S. constitutional history,” though it was established in an 1803 Supreme Court decision, Marbury vs. Madison.

Judicial review is not universal. “Westminster system” laws, for instance, can be free from meaningful judicial review on the basis that Parliament is sovereign. Britain has no written constitution, relying instead on custom. Recent attempts by the British Supreme Court to assert judicial review have been condemned by conservatives there for undermining popular sovereignty. On the other hand, the period of glasnost in the late Soviet Union was notable for Mikhail Gorbachev’s initiative to introduce judicial review into the communist system as a means of reducing the power of the Communist Party.

Undoing judicial review could prove at least as controversial as court packing. Americans generally support the power of courts to rule laws unconstitutional. However popular a policy may be, it should not override basic rights.

Moyn’s second idea is prohibiting the court from hearing certain categories of cases, or “jurisdiction-stripping.” Unlike judicial review, this is actually mentioned in the Constitution and is a power granted to Congress. Indeed, President Franklin Delano Roosevelt’s court packing scheme can be thought of as an attempt at jurisdiction stripping, because he wanted the court to stop blocking his regulation of interstate commerce. Yet conservatives have also toyed with the idea. Chief Justice Warren Burger suggested during the busing controversy of the early 1970s that Congress could prohibit the Supreme Court from hearing busing cases through its legislative power. The New York Times condemned this suggestion.

An attempt by an overwhelmingly progressive Congress to strip jurisdiction from the Supreme Court could therefore prove contentious. However, if enough precedent were established with uncontroversial laws, the effort might prove successful. Conservatives should keep an eye on any attempt to assert jurisdiction stripping.

Finally, Moyn suggests a “supermajority” rule, requiring, for example, six or seven of nine justices to approve striking down a law. This would indeed be within Congress’ power, as laid out in the Constitution, and could prove to be the worst of his suggestions. Americans on both sides of the political aisle have been outraged by narrow 5-4 decisions. A supermajority requirement could be marketed as reducing the power of “activist” judges of either side. Far from proving controversial, it might even prove popular. But the Left has historically relied heavily on activist judges to invent rights (especially social rights) that it couldn’t get through democratic legislation and that the Framers never dreamed of. A supermajority requirement could make such decisions impossible.

Socialists and progressives should proceed with a degree of humility. By reducing the power of the courts, they are presenting a hostage to fortune. At some point, the democratic shoe will be on the other foot, and conservatives could find themselves with sufficient majorities in Congress to pass anything they like. Those would also be expressions of “popular will.” They may not like what a populist nationalist Congress would propose and may regret not having courts to push back.

In general, it is a bad idea to give government powers that you would not like your opponents to have. Moyn’s dreams presuppose that the Left will be in the majority forever, starting with the next election. Like socialist economic policies, it is a judicial philosophy based on self-delusion.