On June 27, 2018, Supreme Court Justice Anthony Kennedy resigned, setting off a fierce battle for the future of American democracy. The American right, grouped in the Republican Party, sees the chance for President Trump to appoint a second justice as its opportunity to secure a solid right-wing majority for the first time since before FDR. Many other Americans fear that a Republican majority on the court will lead to the end of majoritarian democracy. It looks like Trump will get his justice, sooner or later, and may even appoint a third or a fourth before he leaves office.
Are Americans doomed to minority rule for generations to come? Possibly. But there is a way out.
Trump Will Get His Majority on the Supreme Court
Trump says he will select a nominee from a list of hard-right candidates produced by the Federalist Society. Democratic Senators intend to stall any nomination, claiming that the new justice should not be selected until after the voters get a chance to vote in the midterm elections in November.
The Republicans hold 51 of the 100 seats in the Senate, but Republican John McCain may not be able to make a vote. In that case the Republicans would need every single one of their remaining 50 members to support Trump’s nominee. Democrats hope they can convince the only two female (and only two pro-choice) Republican Senators to withhold their support, given that the confirmation of a Trump nominee would likely mean the end of legal abortion in much of the country. There is also the possibility that Republican Senator Jeff Flake, a conservative who has expressed his dissatisfaction with Trump, might not support a Trump nominee.
Although some Republican Senators might not vote for a Trump nominee, it is also possible that some Democratic Senators might. There are six Democratic Senators up for re-election from states that had a Trump plurality in 2016 and whose races are currently too close to call. Some of these Senators could break ranks with their colleagues in order to enhance their electoral prospects.
The larger problem is that it is unlikely that the Democrats will gain Senate seats in the 2018 elections. Although there are many Democrats (and some former Republicans and independents) who are highly motivated to vote against Trump, they don’t live in the right places. And turnout of Republican-leaning voters is generally higher in midterm elections. In 2016, Democratic candidates for Senate received 11 million more votes than Republicans, but the Democrats gained only two additional seats. In 2014, Republicans received fewer than 4 million more votes than Democrats, but gained nine additional seats.
If Democrats ride a wave of enthusiasm and outrage over Trump’s policies, it is possible they could eke out a Senate majority. If so, they may use Mitch McConnell’s stolen Supreme Court seat of 2016 as a precedent to put off a vote on Trump’s court appointees indefinitely — as Republicans in fact threatened to do if Hillary Clinton had won in 2016, as many expected.
But it is far more likely that Trump will get his second seat on the Court. And maybe a third and fourth. Ruth Bader Ginsburg, 85, and Stephen Breyer, 79, may not be able to continue serving until the next president is inaugurated in January 2021.
An Anti-Democratic Institution?
Why should the beliefs of a handful of unelected judges be so critical to the future of American democracy?
The New York Times recently editorialized that “The Supreme Court is designed as a countermajoritarian institution, and operates as a crucial check in a democracy based on majority rule.” This is incorrect on two levels. The Constitution merely states that “The judicial Power of the United States, shall be vested in one supreme Court;” it does not make the Court a third, higher, branch of the legislature. It is also incorrect in that the rest of the Federal government is not “a democracy based on majority rule,” given the way we elect the President (Electoral College), the Senate (unequal district sizes), and the House (district lines drawn to favor ruling parties and incumbents).
The undemocratic role of the Supreme Court was not created by the Constitution but has evolved over time. Justice Marshall first declared the Court’s right to overturn laws of Congress in 1803 (while handing a substantive victory to his political opponents). The Court did not overturn another act of Congress until 1857, but judicial review became well established thereafter. Representative and almost Supreme Court justice Roscoe Conkling argued in the 19th Century that judicial review makes “the Constitution, the institutions of the country, nothing but wax in the hands of judges; it amounts to a running power of amendment.” (the Life and Letters of Roscoe Conkling, vol 3, p. 105 as quoted in Adam Winkler, We the Corporations, 2018, p. 130). Conkling knows what he was talking about: he was responsible for fraudulently persuading the Supreme Court that the drafters of the Fourteenth Amendment had intended to give corporations, not just natural persons, equal protection rights (Adam Winkler, We the Corporations, 2018, Chapter 4).
Between 1899 and 1937, the Supreme Court invalidated more than 170 statutes, most regulating economic activity, based on the theory that governments may not generally interfere with the right to contract, although this right is not explicitly stated in the Constitution. Notably, the Court said in 1918 that Congress could not restrict child labor. In response, Congress approved a Constitutional amendment to permit federal regulation of child labor in 1924, and 28 states ratified it by 1937.
The FDR Precedent
Franklin Delano Roosevelt was elected with 57% of the vote in 1932, and nearly 61% in 1936, and by 1937 his Democratic Party held more than 70% of the seats in Congress. Despite these sweeping majorities, the Supreme Court delivered many opinions limiting or invaliding key parts of his New Deal policies.
Although today’s Democrats may not be able to prevent a sharp rightward shift in the Supreme Court during Trump’s term of office, they may be able to reshape the Court later. If the 2020 elections result in a sweeping repudiation of Trump and Democratic control of the House, Senate, and Presidency, the Democrats should not let the Supreme Court stand in the way of democracy.
That’s what FDR did. Since Federal judges cannot be forced to retire, he proposed that after a judge has reached retirement age, the President would appoint another judge to help with the workload. It is often remembered that this “court-packing” plan was one of his rare defeats, but this was absolutely not the case. The opposition to the plan was led by Democrats who proposed that Congress pass a constitutional amendment that would either explicitly grant it stronger powers to regulate the economy or give Congress the power in extraordinary circumstances to overrule a decision of the Supreme Court. Given the Democrats’ dominance in Congress and in many state legislatures, it is conceivable that one of these proposed amendments might have been adopted. Congress had recently approved and fast-tracked an amendment to repeal prohibition, and in recent memory the country had ratified amendments to tax income, directly elect senators, and give women the vote.
But FDR did not want to take the chance. He argued in a fireside address that “it would take months or years to get substantial agreement upon the type and language of an amendment. It would take months and years thereafter to get a two-thirds majority in favor of that amendment in both Houses of the Congress. Then would come the long course of ratification by three-fourths of all the States. No amendment which any powerful economic interests or the leaders of any powerful political party have had reason to oppose has ever been ratified within anything like a reasonable time. And thirteen States which contain only five percent of the voting population can block ratification even though the thirty-five states with ninety-five percent of the population are in favor of it.” Further, he added, “Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of Justices who would be sitting on the Supreme Court. An amendment, like the rest of the Constitution, is what the Justices say it is rather than what its framers or you might hope it is” (Public Papers and Addresses of Franklin D. Roosevelt, vol 1937 p. 130, as quoted in Bruce Ackerman, We the People: Transformations, pp. 326-327).
Therefore FDR wanted to be able to name enough new justices to gain a favorable majority. And he had the ability: the Constitution does not specify the number of justices on the Supreme Court. In the 19th Century Congress changed the number from time to time, often for political reasons, with the last change in 1869. Support for his plan in the public and in Congress faded in the summer of 1937–primarily because the Court stopped voting against FDR. Just the threat of changing the system was, apparently, sufficient for the Court to make a “switch in time.” Moreover, by 1940, FDR had appointed a solid majority of New Dealers to the court. Thus he completed constitutional amendment via appointment instead of via Article V.
In 1941, the new court formally overturned the child labor precedent. The Child Labor Amendment was no longer needed–it had been accomplished by judicial appointments. Yet the Court had succeeded in thwarting the will of the majority–indeed, of a super-majority–for 20 years on this topic, and for longer in other matters.
Restructure the Court to Prevent Gaming of the System
Because amending the constitution is so difficult–as FDR astutely observed in 1937–the Court with its assumed power of judicial review has become in some ways more powerful that Congress–a result that the Framers of the Constitution surely did not intend. Presidents have been gaming the system by appointing younger and younger justices who are serving on the court longer than ever.
In the past appointees were partly selected based on their beliefs, but there were many surprises: Republican Dwight Eisenhower’s appointee Earl Warren led a Court that supported minority rights and democratic values more than any other before or since. Republican Gerald Ford’s appointee John Paul Stevens was the Court’s staunchest liberal when he retired in 2010. But since 2001 most Republican appointees, and all those under consideration by Trump, have been carefully vetted and groomed by the Federalist Society to promote uniformly conservative, often anti-majoritarian, opinions.
If the Democrats win control of the government in the November 2020 elections (the Presidency and both houses of Congress), it will almost certainly be with a supermajority of voter support and a sweeping repudiation of Trump and his Republican sustainers. Given the current distribution of voter preferences and the gerrymandering of the House and the built-in gerrymandering of the Senate, the Democrats will need to win significantly more than half the vote to get at least half the seats. The same may well be true for an electoral college victory.
If the policies of this hypothetical Democratic Congress of 2021 are blocked by a partisan Supreme Court majority created by previous Republican presidents, the Court will be quite nakedly thwarting the will of the supermajority. In that case it will be essential for Congress to use its powers to reshape the Court rather than follow the dictates of a politicized judiciary picked based on ideological beliefs and potential longevity by presidents not supported by most Americans.
Congress has the ability to change the number of justices or even to limit the jurisdiction of the Supreme Court. Increasing the size of the court would provide the opportunity for the new administration to immediately appoint justices.
One option is to require a supermajority of the whole number of justices to overturn an act of Congress or reverse a major precedent. Law professor Jed Shugerman has also expressed this idea. This reform could help restore the balance of power to Congress, but would not necessarily solve the Democrats’ immediate problem, depending on the eventual number of Trump appointees.
Another option is to both enlarge the Court and require it to decide most cases by a panel of justices picked at random. This is the method used by the U.S. appellate courts: for most cases, three judges are picked randomly from the 11 to 17 justices that serve in most circuits. A new Judiciary Act might double the size of the Supreme Court, possibly phased in over a number of years. Panels are used for ordinary cases of the Supreme Courts of England and Japan and a few U.S. state supreme courts.
I independently conceived of the idea to reconstruct the Supreme Court in the manner of the Appellate Courts in order to reduce its politicization and increase its workload and as a work-around to a future counter-majoritarian constitutional crisis. Subsequently I discovered that actual law professors wrote an actual law review article proposing a similar reform (Tracey E. George and Chris Guthrie. Remaking the United States Supreme Court in the Courts’ of Appeals Image. Duke Law Journal Vol. 58, No. 7, April 2009, pp. 1439-1475).
Professors George and Guthrie note that the caseload of the Federal courts has dramatically increased in recent decades, whereas the number of annual Supreme Court decisions declined from nearly 300 in 1971 to fewer than 90. They recommend expanding the Court to a total of 15 by allowing the appointment of one, and only one, justice per (two-year) term of Congress, whether to fill a vacancy or to increase the size of the court. Cases would generally be heard by panels of three justices, except “to resolve challenges to the constitutionality of federal statutes, to overturn Court precedent, and to answer other questions of exceptional importance.” The professors argue that the expanded court would decide more cases, providing better clarity and guidance to the lower courts. They also argue that more justices would make the confirmation process less controversial and might encourage justices to retire sooner. In a more recent law review article, Adam Morse and Julian Yap also argue for the court to be expanded to 15, but suggest panels of nine instead of three.
A hypothetical Democratic government would no doubt tailor its proposal to prevent thwarting of its agenda, as did FDR in 1937. Yet a restructuring could both serve the immediate need of the majority as well as produce a more efficient, less politicized Supreme Court.
An Agenda for 2021
In addition to remaking the Supreme Court, the new Democratic supermajority will need to adopt a series of revolutionary laws to secure basic democratic freedoms, including:
- Complete the process of eliminating the filibuster in the Senate.
- Adopt a new Voting Rights Act that establishes uniform national rules for voter registration, voter qualifications, redistricting, and candidate and party qualifications for elections to U.S. House and Senate.
- Expand the size of the U.S. House for the first time in more than a century.
- Create uniform rules for electing members of the House and Senate by ranked choice voting without primary elections.
- Reduce the inequality of the Senate by admitting Puerto Rico and the District of Columbia as states and, potentially, divide California into two or more new states.
- Provide for the direct election of the President.
These proposals will be described in future posts.
However, fixing the Supreme Court, and indeed all of these proposed reforms, cannot happen unless the anti-Trump majority overcomes structural impediments to win effective control of the government as of January 2021. This is the most important task for Democrats and democrats.