Teszler: Barrett Isn’t the Problem — The Court Is

Democrats should focus on restructuring the Supreme Court and limiting its power.

by Max Teszler | 10/6/20 2:05am

Less than 72 hours after the death of Justice Ruth Bader Ginsburg, President Donald Trump privately offered a Supreme Court nomination to Amy Coney Barrett, a staunchly conservative judge and self-described ideological counterpart to Justice Antonin Scalia. The judicial majorities which uphold abortion rights, gay marriage and the Affordable Care Act now stand imperiled. But no judicial confirmation should ever have had such apocalyptic stakes. A single elderly judge has died, a tragic personal loss for her family, friends and admirers — but one which should not be able to dictate the political trajectory of the United States.

The current moment is a culmination of decades of conservative legal strategy and a concerted effort to dominate the federal judiciary at every level. It is time for a liberal strategy of equal ambition — one that does not seek to enhance democratic power on the Supreme Court and instead makes the Court less powerful altogether. An empowered, yet unelected, body of nine is in itself a major problem for democracy, magnified when political parties seek to use the courts as a method of enforcing their control rather than upholding the independence of the judiciary.

It is eminently clear who is winning the battle for the judiciary at present. Republican presidents have made 10 out of the last 14 appointments to the Supreme Court. In one term, Trump has appointed more than a quarter of all the judges on federal appeals courts, after the Republican Senate under Mitch McConnell held dozens of vacancies under the Obama administration, McConnell even led the obstruction of a Supreme Court nominee, Merrick Garland, holding the seat vacant for over a year. The herculean tactics employed during these nominations owe to one simple reason — the Supreme Court holds enduring power over American policy, as it is able to shape the path of the nation for decades to come.

In light of this judicial onslaught, Democrats have focused on trying to win back the presidency and Senate, and possibly even adding more justices to the court if Barrett is confirmed. Such a desire is understandable — in an era of gridlock, and with little policy coming from Congress, the Court’s import has only grown. 

A number of liberal democracies exist without strong Supreme Courts — and they have hardly become totalitarian hellscapes. In Great Britain, for instance, courts cannot overturn any legislation passed directly by Parliament. Yet the U.K. ranks higher than the U.S. in multiple independent assessments of civil liberties. Across Europe the particularly forceful American style of judicial review is largely absent — but the continent is home to many of the strongest democracies in the world. A powerful Supreme Court is not necessarily a prerequisite for the protection of civil liberties or the safeguarding of democracy

Defenders of the American model may highlight that the Supreme Court has played a key role in advancing justice, protecting the rights of minorities throughout its history. But on the whole, the Court’s record is profoundly mixed. Cases expanding and protecting rights have often done so as society itself has shifted — the changing opinion of the masses affected change, although through an undemocratic conduit. By the time gay marriage was legalized nationwide by the Court, public support for same-sex unions stood at 60%, the result of over a decade of intense activism by LGBTQ Americans and their allies. Meanwhile, Brown v. Board of Education came in the midst of already consistently increasing support for integrated schools.  

And for every case which has expanded the rights of Americans, there are many more which legalized and condoned tremendous evil, such as Korematsu v. United States, which upheld the forced internment of Japanese Americans, a precedent which took until 2018 to be overturned. Some cases which increase protections can actually end up backfiring due to the Court’s unelected nature. For instance, the Court’s decision in Roe v. Wade striking down abortion restrictions has been used as a clarion call by conservatives as an example of judicial over-reach. 

What unites these cases, wrongly and rightly decided both, is a disease at the heart of the federal judiciary — a single court, on the whims of a single justice in some cases, can overturn the will of millions of people. The Supreme Court’s ruling on gay marriage, for instance, hinged on the vote of a single man, Justice Anthony Kennedy. This concentration of power is incongruent to modern concepts of democracy, and moreover, was never authorized even in the imperfect Constitution of the founding fathers. The idea of courts altogether is not the problem — there needs to be bodies to apply statues and issue unbiased rulings. But courts of any kind should not be the end-all, be-all deciders on controversial political issues.

Reform hardly requires a belief in a utopian direct democracy. Amending the Constitution to add judicial term limits would standardize the schedule of appointments and make Supreme Court nominations far more predictable. This would be an antidote to the situation we are living in now, in which Obama made two Supreme Court appointments in his entire eight years and Trump has nominated three in his first term alone. Each Supreme Court fight would lack the once-in-a-generation consequences, giving the Court regular turnover and each individual justice less influence over the fate of the nation.

Some reforms could even be approved solely by Congress. Expanding the size of the Court would reduce the power of each justice and could hopefully make confirmation battles less contentious. A nonpartisan form of “court packing” should be pursued beyond the partisan ramifications of the latest nomination — not as a political power grab but to reduce influence of one or two crucial swing votes. Finally, a concerted effort to change public opinion could pressure presidents of both parties to appoint justices far more constrained in their judicial philosophy, who would defer to the laws rightfully approved by the elected legislature and executive.

There are a whole host of ways the structured federal government frustrates the democratic will of the people. The Supreme Court could make an appealing target to expand popular control of this country. Regardless of whether Coney Barrett is confirmed or not, it’s time for those on the left to aim high — not to control the Supreme Court, but to make the Court not worth controlling at all.