Some Perspective on the Renegade Supreme Court Majority

We know they’re corrupt, but are they so out of the ordinary? David Cole is a law professor and the legal director of the ACLU. These are excerpts from a longer article from the New York Review of Books:

Over the course of the Supreme Court’s 232-year history, 110 men and six women have served as justices. Just a small handful of them have been “originalists,” holding the view that the only appropriate way to interpret the Constitution is to ask how its provisions were specifically understood at the time they were adopted. But in 2020 that handful became, for the first time, a majority of the Court when Amy Coney Barrett was confirmed, joining fellow originalists Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. (Chief Justice John Roberts is sometimes an originalist and sometimes not.) During the 2020–2021 term—Barrett’s first—the Court proceeded cautiously, mostly seeking consensus across ideological lines through narrow decisions.

But this past term, which concluded on June 30, these five individuals abandoned caution and exerted their newfound authority like few justices ever have. The Court eliminated the right to abortion, struck down a century-old New York law that limited the public carrying of guns, required Maine to fund religious education and a Washington State public school to allow its football coach to pray publicly at the fifty-yard line after games, blocked President Biden’s Covid vaccine mandate for large businesses, and denied the Environmental Protection Agency the authority to require power plants to shift away from coal in order to slow global warming. Compromise, consensus, and the rule of law are out; the radical exercise of power is in.

In several of its most controversial decisions, including those on abortion, gun control, and prayer, the Court invoked originalism to overturn long-standing law and precedent. That approach, if applied consistently, would upend virtually all of constitutional law. Because so few justices throughout American history have been originalists, constitutional law as it stands today, especially with respect to its open-ended guarantees of liberty, equality, and due process, bears little resemblance to how it was originally understood. To revert to that understanding would be plainly unacceptable; it would mean, for example, reviving “separate but equal” [schools for blacks and whites] and depriving women of equal protection. For better or worse, even the most committed originalists don’t apply originalism consistently, so it’s unlikely that the Court will resurrect Plessy v. Ferguson, the 1896 decision upholding segregation. But this past term, the new majority aggressively applied originalism to disastrous effect, and only they know how far they will go.

The biggest case of the term, and thus far of the century, was Dobbs v. Jackson Women’s Health Organization, in which five justices, including all three of [the previous president’s] nominees—Gorsuch, Kavanaugh, and Barrett—voted to overrule Roe v. Wade and about twenty other Supreme Court cases that had followed and applied Roe over nearly half a century. Dobbs will almost certainly be included among the Court’s worst decisions in history. Never has the Court eliminated a constitutional right so central to the equality and autonomy of half the nation. And never has the Court overturned precedent on such a transparently thin basis….

The majority’s conclusion that Roe was “egregiously wrong” rested on its view that the only appropriate way to interpret the Constitution is by reference to its “original understanding.” But there is another way to read the Constitution. It’s sometimes called the “living Constitution” or “common-law constitutionalism,” and it is the method used by virtually every justice in the Court’s history other than the five in the Dobbs majority, the late Antonin Scalia, and sometimes Chief Justice Roberts. Under that approach, the Court starts with the text of the Constitution but recognizes that its broad, open-ended terms—such as “liberty,” “due process,” and “equal protection”—were designed to evolve over time, through the accretion of precedent, the articulation of principle and fundamental norms, and reasoning by analogy. Under that approach, Roe is not “egregiously wrong” but plainly correct.

In a series of decisions over the last century, the Court has interpreted “liberty” in the Fourteenth Amendment in this way, and not exclusively by reference to its original understanding or “history and tradition.” It has relied on the provision to bar stomach-pumping to search for drugs and forced sterilization, and to protect the rights to use contraception, to marry someone of a different race or the same sex, to choose how to educate one’s children, and to engage in consensual sexual relations with adults of one’s own sex, despite the fact that none of these rights is expressly provided in the Constitution. The right to choose whether to bear a child is of a piece with these decisions and is therefore protected for the same reason. Roe is “egregiously wrong,” then, only if the methodology used by virtually every justice to have ever served on the Court is egregiously wrong….

Overturning precedent requires more than a determination that the prior ruling is wrong, because otherwise the Constitution would change each time the makeup of the Court does. Justice Alito conceded that the Court must also ask whether people have relied on the prior ruling before overturning it. But he callously dismissed such concerns… This is stunningly obtuse….While the majority opinion in Dobbs declared that “the most striking feature of the dissent is the absence of any serious discussion of the States’ interest in protecting fetal life,” the dissent quoted the majority’s own language back at it: “‘The most striking feature of the [majority] is the absence of any serious discussion’ of how its ruling will affect women.”

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court similarly elevated adherence to a crabbed view of history over both standard constitutional methodology and present-day reality….By the increasingly common margin of 6–3, struck down a New York law dating from 1911 that required individuals to demonstrate that they had a need to carry a gun in public before they could be licensed to do so….

The Second Amendment did not even protect an individual right to own a gun until the Court’s District of Columbia v. Heller decision in 2008. Before then, the courts, the Justice Department, and historians had long viewed the Second Amendment as protecting only the rights of states to field a militia, as a check on federal tyranny. In Heller, after a long and carefully orchestrated campaign by the National Rifle Association, the Supreme Court for the first time announced that the Second Amendment protected an individual right to possess a firearm in one’s home for self-defense…..At the time, however, the Court reassured the public that the Second Amendment right was not absolute and was subject to reasonable regulations…..

In Bruen, however, the Court went much further. In a decision written by Justice Thomas, it announced that the only gun regulations that the Constitution permits are those that have a direct analogue in laws that existed in the eighteenth century, when the Second Amendment was adopted, or possibly the nineteenth century, when Congress adopted the Fourteenth Amendment….In the absence of a specific historical precedent, any restrictions on the right to bear arms are unconstitutional—no matter how serious the threat guns pose to public safety or how reasonable the regulation…..

The Court’s approach is contrary to common sense, constitutional precedent, and the very history it purports to rely upon. Most fundamentally, why should states in the twenty-first century be limited to what states did centuries earlier, particularly when conditions have radically changed?

… The particular historical approach Justice Thomas announced, in which the only laws that are valid are those that mirror eighteenth- and nineteenth-century laws, applies to no other constitutional right. …With respect to virtually all other rights, courts also ask whether the state has a strong enough interest to limit the right, and whether it has done so in a sufficiently narrow way. This “means-ends” scrutiny, pervasive in constitutional law, governs free speech, free exercise, and equal protection claims, among others, and expressly allows for the assessment of contemporary needs and conditions….

But it gets worse. Defenders of New York’s law cited boatloads of historical examples of laws restricting the public carrying of weapons, spanning nearly seven hundred years. They include the Statute of Northampton, first enacted in 1328, which made it a crime to carry arms in public without the king’s permission and which was copied by several American colonies. Limits on carrying weapons continued through the founding era, and before and after the enactment of the Fourteenth Amendment. It should hardly be surprising that governments have long restricted the carrying of weapons in public.

Justice Thomas, however, found ways to reject each and every historical example. As Justice Breyer pointed out in a devastating dissent, Thomas found some “too old,” others “too recent.” “Some were enacted for the wrong reasons,” others “arose in historically unique circumstances.” Thomas’s wide-ranging set of excuses for rejecting analogues only underscores the subjective character of the enterprise and belies any claim that the historical method of interpretation significantly restrains judicial discretion….

Judging, especially at the Supreme Court level, requires not just a theory for interpreting constitutional law. It requires statesmanship, humility, an open mind, and, perhaps most importantly, respect for the institution and the accumulated judgment of one’s predecessors. As the Dobbs dissent noted, Justices Kennedy, O’Connor, and Souter [all nominated by Republican presidents] understood that:

The American public … should never conclude that its constitutional protections hang by a thread—that a new majority, adhering to a new “doctrinal school,” could “by dint of numbers” alone expunge their rights. It is hard—no, it is impossible—to conclude that anything else has happened here.

Next term the Court takes up the constitutionality of affirmative action, racial discrimination in redistricting, a sweeping challenge to the Indian Child Welfare Act, a claim that “expressive” businesses have a right to discriminate against gay couples … and an unprecedented and dangerous claim that state courts cannot police their legislatures when they gerrymander congressional districts. Whether the Court will continue its headstrong approach to all that has gone before it is likely to depend on how we as citizens respond to its initial salvos. If Americans mobilize, demonstrate, and vote on issues like abortion, gun control, and climate change, the Court will at some point have to take heed. But if we sit back and allow it to take away our rights and safety without a fight, there’s no telling how far the five [or six] justices who now exercise majority control will go.

Unquote.

It’s an excellent article, but I disagree with the author’s contention that this Court “will at some point have to take heed” of what the majority of American voters want. Short of Congress doing something like adding Supreme Court justices or limiting the Court’s ability to declare laws unconstitutional, this renegade Republican majority has absolute power. They can rule however they want and can always make up reasons for doing so.

The Supreme Court Has Never Been a Level Playing Field

The Constitution deserves less respect. So does the Supreme Court. After reviewing the Court’s history as an impediment to progress, Ian Millhiser of Vox argues that “the judiciary is structurally biased in favor of conservatives:

The Court was the midwife of Jim Crow, the right hand of union busters, the dead hand of the Confederacy, and now is one of the chief architects of America’s democratic decline….

Decisions like Dobbs, which commandeer the bodies of millions of Americans — or decisions dismantling the Voting Rights Act — are entirely consistent with the Court’s history as defender of traditional hierarchies. [Justice Samuel] Alito is not an outlier in the Court’s history. He is quite representative of the justices who came before him.

In offering this critique of the Supreme Court, I will acknowledge that the Court’s history has not been an unbroken string of reactionary decisions dashing the hopes of liberalism. The Court’s marriage equality decision in Obergefell v. Hodges (2015), for example, was a real victory for liberals.

But the Court’s ability to spearhead progressive change that does not, like marriage equality, enjoy broad popular support is quite limited. The seminal work warning of the heavy constraints on the Court’s ability to effect such change is Gerald Rosenberg’s The Hollow Hope, which argues that “courts lack the tools to develop policies and implement decisions [in favor of] significant social reform,” at least when those reforms aren’t also supported by elected officials.

This constraint on the judiciary’s ability to effect progressive change was most apparent in the aftermath of perhaps the Court’s most celebrated decision: Brown v. Board of Education (1954).

Brown triggered “massive resistance” from white supremacists, especially in the Deep South. As Harvard legal historian Michael Klarman has documented, five years after Brown, only 40 of North Carolina’s 300,000 Black students attended an integrated school. Six years after Brown, only 42 of Nashville’s 12,000 Black students were integrated. A decade after Brown, only one in 85 African American students in the South attended an integrated school.

The courts simply lacked the institutional capacity to implement a school desegregation decision that Southern states were determined to resist. Among other things, when a school district refused to integrate, the only way to obtain a court order mandating desegregation was for a Black family to file a lawsuit against it. But terrorist groups like the Ku Klux Klan used the very real threat of violence to ensure few lawsuits were filed.

No one dared to file such a lawsuit seeking to integrate a Mississippi grade school, for example, until 1963.

Much of the South did not really begin to integrate until Congress passed the Civil Rights Act of 1964, which allowed the Justice Department to sue segregated schools, and which allowed federal officials to withhold funding from schools that refused to integrate. Within two years after this act became law, the number of Southern Black students attending integrated schools increased fivefold. By 1973, 90 percent of these students were desegregated.

Rosenberg’s most depressing conclusion is that, while liberal judges are severely constrained in their ability to effect progressive change, reactionary judges have tremendous ability to hold back such change. “Studies of the role of the courts in the late nineteenth and early twentieth centuries,” Rosenberg writes, “ show that courts can effectively block significant social reform.”

And, while such reactionary decisions may eventually fall if there is a sustained political effort to overrule them, this process can take a very long time. Dagenhart [a decision that overruled Congress and allowed products made by child labor to cross statelines] was decided in 1918. The Court did not overrule it, and thus permit Congress to ban child labor, until 1941.

There are several structural reasons courts are a stronger ally for conservative movements than they are for progressive ones. For starters, in most constitutional cases courts only have the power to strike down a law — that is, to destroy an edifice that the legislature has built. The Supreme Court could repeal Obamacare, but it couldn’t have created the Affordable Care Act’s complex array of government-run marketplaces, subsidies, and mandates.

Litigation, in other words, is a far more potent tool in the hands of an anti-governmental movement than it is in the hands of one seeking to build a more robust regulatory and welfare state. It’s hard to cure poverty when your only tool is a bomb.

So, to summarize my argument, the judiciary, for reasons laid out by Rosenberg and others, structurally favors conservatives. People who want to dismantle government programs can accomplish far more, when they control the courts, than people who want to build up those programs. And, as the Court’s history shows, when conservatives do control the Court, they use their power to devastating effect.

This alone is a reason for liberals, small-d democrats, large-D Democrats, and marginalized groups more broadly, to take a more critical eye to the courts. And the judiciary’s structural conservatism is augmented by the fact that, in the United States, institutions like the Electoral College and Senate malapportionment give Republicans a huge leg up in the battle for control of the judiciary.

Simply put, the Supreme Court has not served the American people well. It’s time to start treating it that way.

Unquote.

A similar point can be made regarding the US Senate. Senators who want to leave everything as it is can use the filibuster to kill legislation much more easily than Senators can use it to pass legislation.  

It Was Religion, Plain and Simple (and Crazy)

It’s the official doctrine of the Catholic Church that a zygote, blastocyst, embryo or fetus is just as much a human being as you or me. It’s a crazy idea, but it shouldn’t matter to the rest of us what a church’s doctrine is as long as they leave the rest of us alone (and don’t do anything crazy to their children on religious grounds). It shouldn’t even matter to the rest of us that a lot of non-Catholics have adopted the same peculiar idea. The problem is that millions of people who accept this strange religious doctrine want the rest of us to act as if we accept it too.

I don’t know how many people who want to force pregnant women and girls to give birth are motivated by the religious idea or by the desire to control women’s and girls’ lives. Some or many are motivated by both. Linda Greenhouse, who writes about the judicial system for the New York Times, says she originally put the Dobbs decision that overturned Roe v. Wade in the abortion category, but then decided it was really about religion:

My own way of keeping track of a Supreme Court term is to log each of the term’s decisions on a chart labeled by category: criminal law, administrative law, speech, federalism and so on. For this past term, one of my charts was, of course, labeled “abortion,” and naturally that’s where I recorded Dobbs v. Jackson Women’s Health Organization….

But the other day, going over my charts before filing them away to prepare for the next term, a realization struck me. I had put Dobbs in the wrong place. Along with the decision about the praying football coach and the one requiring Maine to subsidize parochial school tuition, Dobbs belongs under “religion”….

Justice Alito took pains to present the majority’s conclusion as the product of pure legal reasoning engaged in by judges standing majestically above the fray of Americans’ “sharply conflicting views” on the “profound moral issue” of abortion, as he put it in the opinion’s first paragraph. And yet that very framing, the assumption that the moral gravity of abortion is singular and self-evident, gives away more than members of the majority, all five of whom were raised in the Catholic Church, may have intended.

recent essay in my local newspaper by a Congregational minister, John Nelson, was a powerful reminder that in speaking from one particular religious tradition, the court ignored other vital streams of religious thought. “Samuel Alito is as free as any person to hold forth on morals and politics,” Pastor Nelson wrote, “but his opening salvo is backed up with no reflection on the sources, claims or nuances of morality, leaving the impression that the decision was developed through moral bias rather than moral reasoning.” Describing his own response to the decision as one of “fury,” the pastor said that the justices, in their “concern for the lives of fetuses,” overlooked the “lived experience” of women. “To show no regard for a lived experience is immoral,” he wrote.

Indeed, the fetus is the indisputable star of the Dobbs opinion. That is not necessarily obvious at first reading: The opinion’s 79 pages are larded with lengthy and, according to knowledgeable historians, highly partial and substantially irrelevant accounts of the history of abortion’s criminalization. In all those pages, there is surprisingly little actual law. And women, as I have observed before, are all but missing. It is in paragraphs scattered throughout the opinion that the fetus shines.

“None of the other decisions cited by Roe” and Planned Parenthood of Pennsylvania v. Casey, the 1992 ruling that reaffirmed the right to abortion, “involved the critical moral question posed by abortion,” Justice Alito wrote. “They are therefore inapposite.” Further on, he wrote: “The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a state’s interest in protecting prenatal life.”

This was a strange criticism of the dissenting opinion, signed jointly by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. They argued vigorously for retaining the 1992 Casey decision, which in fact, in a departure from Roe, declared that the state’s interest in fetal life was present from the moment of conception. Casey authorized the states to impose waiting periods and “informed consent” requirements that the court in the years following Roe v. Wade had deemed unconstitutional.

Justice Alito knows the Casey decision very well. As a federal appeals court judge, he had been a member of the panel that upheld most of Pennsylvania’s Abortion Control Act in the case that became Casey. Then-Judge Alito, alone on the panel, wanted to uphold a provision of the state law that required a married woman to inform her husband of her plan to get an abortion.

In affirming the appeals court’s decision, the Supreme Court in Casey emphasized in one of the opinion’s most vivid passages the unconstitutional burden that the spousal notice requirement placed on women: “We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.” Perhaps that aspect of the Casey decision still rankled. In any event, Justice Alito’s attack on his dissenting colleagues for ignoring the state’s interest in fetal life was seriously misguided.

Of course, from his point of view, Casey didn’t go far enough because the weight the court gave to fetal life was well below 100 percent. The Casey decision was five days shy of 30 years old when the court overturned it, along with Roe v. Wade, on June 24. Given that this was their goal from the start, the justices in the Dobbs majority really had only one job: to explain why. They didn’t, and given the remaining norms of a secular society, they couldn’t.

There is another norm, too, one that has for too long restrained the rest of us from calling out the pervasive role that religion is playing on today’s Supreme Court. In recognition that it is now well past time to challenge that norm, I’ll take my own modest step and relabel Dobbs for the religion case that it is, since nothing else explains it.

More from Ezra Klein on Reforming the Supreme Court

Last week I shared most of Ezra Klein’s article about the Supreme Court and the way today’s politics is more about power than norms. He revisited the topic this week. Here’s most of what he wrote:

Late in the lead-up to the 2020 presidential election, as Mitch McConnell rushed to replace Ruth Bader Ginsburg with Amy Coney Barrett, the left began pushing Joe Biden to endorse adding seats to the Supreme Court. Biden, in response, did what politicians do when faced with an issue they don’t want to think about: He promised to create a commission to study the issue.

That commission submitted its report in December 2021, and as far as I can tell, Biden’s lack of interest has been confirmed. For all the fury at the Supreme Court in recent weeks, the Biden administration doesn’t seem to have mentioned the report or any of the options it raised. Perhaps that’s just an admission of political reality. Democrats don’t have the votes to change the court.

But the Biden administration needs to change political reality, not just accept it….. One such [response] might be a plan to repair the court — one that goes beyond restoring Roe v. Wade and demonstrates a deeper vision for reimagining America’s political system in an era of crisis….

The commission’s report doesn’t endorse any particular plan. Instead, over nearly 300 pages, it considers several plans and airs the arguments for and against them. At times it’s pathologically evenhanded, bordering on naïve….But in total, the report is a thorough … tour through ways the court could be restructured….

In Federalist No. 78, Alexander Hamilton wrote that the judiciary has “… neither FORCE nor WILL, but merely judgment”. The debate over the Supreme Court tends to revolve around the word “legitimacy.” The fear is that the court will lose its legitimacy, whatever that means. But the word Hamilton uses is more interesting: judgment.

I take the problem with the current Supreme Court to be that there’s no reason to trust its judgment, and many reasons to mistrust it. The process for picking appointees is thoroughly politicized. The process by which seats come open and the court is refreshed is thoroughly politicized, save when death intervenes with a justice’s preferred moment of retirement. Critical cases are decided again and again on party-line votes, making a hash of the idea that the court speaks as an institution, on behalf of the Constitution, rather than as nine ideologically predictable political appointees.

As I argued last week, the court — like the rest of our political system — wasn’t designed for an era of polarized political parties. It is supposed to be a check on the other branches, not an amplifier of the power the parties wield across them. Its problem is a mismatch between the political system for which it was designed and the political system we actually have. And so the question is, what might the court look like if it were designed for this era? What reforms would make the court’s judgment more, rather than less, trustworthy?

In my view, court packing, the idea that arguably launched the commission, fails that test…. You can’t fix the court by adding justices. You’re shifting the balance of power by contributing to the underlying problem: turning the court into an untrustworthy institution and setting off a cycle of reprisals with unknown consequences…. [Note: I disagree. This is an emergency. If the Democrats in Washington wanted to, they could add four justices to match the number of federal circuit courts. There used to be nine circuits. Now there are thirteen. Then let the Democrats propose a way to make the court more balanced in the future. See below.]

Let’s start with the easy one: term limits. Lifetime appointment did not mean, for most of American history, what it means today. The commission notes that until the 1960s, the average length of service on the court was 15 years. Now it’s 26 years — and perhaps rising. As the partisan stakes of Supreme Court nominations have sharpened, life span has become one more variable to game: Parties are looking for the youngest justices they can credibly pick in order to ensure their nominees hold power far into the future.

Worse, because justices retire strategically, power in the court now builds power in the court later. As the commission notes, Trump “appointed three Justices in his single four-year term; his immediate Democratic predecessors, Presidents Barack Obama, Bill Clinton, and Jimmy Carter, made only four appointments total in a combined twenty years in office.” Lifetime appointments were intended to insulate the justices from politics. Instead, they have become a driver of the court’s politicization.

Limiting justices to 18-year terms has collected a fair amount of bipartisan support over the years…. When the National Constitution Center convened separate groups of liberal and conservative legal scholars to consider court reform, both ended up proposing 18-year terms. It also has the force of international practice behind it. This, from the report, is worth reflecting on:

The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limit for its high court Justices….  In light of this contrast, one scholar who testified before the Commission opined that, “were we writing the United States Constitution anew, there is no way we would adopt the particular institutional structure that we have for judicial tenure. No other country has true lifetime tenure for its justices, and for good reason.”

… Eighteen-year terms would mean, over time, that presidents could expect two appointments per term. A two-term presidency would see four appointments — … enough to make sure the court doesn’t fall too far out of step with the American people. It would also lower the stakes on any one vacancy or any one decision, because vacancies would become predictable and commonplace.

But there’s also a need to depoliticize the court and protect it from politics. It now seems unlikely that vacant seats can ever be filled when the White House and the Senate are controlled by opposing parties … [No, the evidence is that would only happen if Republicans controlled the Senate, like they did in 2015. As Mr. Klein adds parenthetically…] (In case you thought Merrick Garland a one-off, McConnell has already said it’s “highly unlikely” he’d let Biden fill a Supreme Court seat if Republicans retake the Senate in 2022.)

But the commission has an interesting idea for that. If the Senate fails to act on, or otherwise confirm, two Supreme Court nominees in a set amount of time, the deadlock could trigger a new process in which the chief judges of the federal Courts of Appeals would vote on the next nominee….

More radical is the idea for a “balanced bench.” The commission does not discuss this idea at any length… The balanced bench is a proposal by Daniel Epps and Ganesh Sitaraman, both law professors, to divvy up Supreme Court seats in a new way: Both parties would get five justices, and then those 10 justices would be called upon to unanimously or near-unanimously agree on another five justices.

The merits of the balanced bench proposal are perfectly, if accidentally, encapsulated in the commission’s critique of the idea:

An explicit requirement that Justices be affiliated with particular parties would constrain the pool of potential nominees and reinforce the notion that Justices are partisan actors….This close identification of Justices with political party could undermine the perception of judicial independence, which is important to the acceptance of and compliance with the Court’s decisions.

Yes, it would be a shame to reinforce the accurate perception that Supreme Court nominees, chosen by political parties, extensively vetted for ideological reliability, might be, on some level, partisan actors. [This is] extraordinary: Even if it is true that the justices have “ideological motivations,” we must act like it isn’t true, because an accurate understanding of the judiciary might undermine “acceptance of and compliance with” its decisions.

This is an argument for denial, when what we require is a reckoning…. A central question in any political system is how to balance power so all sides have an interest in the system’s continued success. The problem in our system is that we are balancing the power of places rather than parties. The framers believed the politics of states would structure our politics. “Many considerations … seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States,” wrote James Madison in Federalist No. 46. And so the Senate balances the power of states equally, and the [Electoral College] gives rural areas a boost in political representation.

But the framers were wrong. Political parties are our primary political attachments, and that’s been true for decades. Perhaps the Supreme Court should be a place that balances their power rather than another venue through which they compete for dominance.

Taking parties seriously means recognizing who is left out by party competition, too. Many Americans … find themselves utterly unrepresented by the current nominations process. There should be a path to the Supreme Court that does not rely on proving yourself a loyal foot soldier, decade after decade, to the party likeliest to sponsor you, a path that relies on building the best reputation for judgment among peers of all political persuasions. The “balanced bench” idea would create that path, too…. The proposal is a provocative sketch rather than a fully worked-through plan. But provocations are what we need.

We treat the creaking, cracking structure of American government with a strange mix of awe and fatalism; either we think it somehow heretical to question, or we’re so pessimistic about the prospect of change that we don’t even bother. But to dive into the history of court reform, as the commission does, is to be reminded that the Supreme Court was imagined by human minds, and made and remade by human hands. We honor the idea of the American experiment, but we have lost the spirit of experimentation that made it work. We did not discover the ideal structure for the Supreme Court, once and for all, in 1869 [when the number of justices was set to nine]. Our forerunners did their best for the times in which they lived. It is time we did ours.

Goodbye Norms, Hello Power

Ezra Klein points out that when Senator McConnell refused to have the Senate consider a Democrat’s Supreme Court nomination and then rushed through a Republican’s, nothing he did was “against the rules”. That doesn’t mean Washington is the same as before:

McConnell … didn’t steal any seats. Nothing he did was against the rules, which was why Democrats found themselves powerless to stop him. Liberals, in their anger, have too often ignored the logic of McConnell’s actions. He understood what too many have ignored: America’s age of norms is over. This is the age of power. And there’s a reason for that.

Let’s start here: The Supreme Court has changed. In the ’50s and ’60s, you would have had a hard time inferring a justice’s political background from his votes, as this analysis by Lee Epstein and Eric Posner shows. In the ’90s, Byron White, a Democratic appointee, had a more conservative voting record than all but two of the Republican-appointed justices — Antonin Scalia and William Rehnquist. John Paul Stevens, an anchor of the court’s liberal wing until his retirement in 2010, was appointed by Gerald Ford, a Republican.

But this record of independence was understood, by the parties that produced it, as a record of failure. The vetting process by which nominees are chosen was revamped to all but guarantee ideological predictability. In recent years, “justices have hardly ever voted against the ideology of the president who appointed them,” Epstein and Posner find.

… Ideological polarization is colliding with America’s peculiar political institutions…. Our political system is not designed for political parties this different…. It wasn’t designed for political parties at all. The three branches of our system were intended to check each other through competition. Instead, parties compete and cooperate across branches, and power in one can be used to build power in another — as McConnell well understood.

The Supreme Court is a strange institution — the final word on the law, but with no way to enforce its decisions; clearly political, but supposed to stand above politics; composed of nine bickering individuals, but posing as the impartial voice of the Constitution — and we have papered over its peculiarities with traditions of continuity and restraint. We ask senators to judge nominees by their qualifications, not their ideas. We ask justices to uphold past decisions they believe are wrong, even immoral. At least, we did. In recent years, the political importance of the court has overwhelmed the norms that (somewhat) insulated it from politics.

As I wrote: “There is perhaps no single vote members of the U.S. Senate take with as much long-term ideological importance than that of a lifetime appointment to the Supreme Court, and asking them to keep that vote, and that vote alone, separate from the ideological promises they make to their voters, and to themselves, is bizarre.” The old norm worked when party conflict was mild enough to create a court that felt, and perhaps was, largely nonpartisan. But those days are long gone.

Making matters worse is that the Supreme Court has gone from being undemocratic to being anti-democratic. Lifetime appointments are iffy under the best of circumstances, but the vagaries of retirements and deaths have given Republicans a control that makes a mockery of the public will. Five of the court’s six Republican justices were appointed by presidents who initially took office after losing the popular vote (and, in the case of George W. Bush, after a direct intercession by five of the court’s conservatives in Bush v. Gore). D____ T____ was able to make more appointments in one term than Barack Obama was able to make in two.

You might think that the minoritarian nature of this Supreme Court would produce a restrained majority, one fearful of falling too far afoul of public opinion. It has not. To read the flurry of decisions and concurrences and dissents in Dobbs is to read less about abortion and rights than you might expect. Much of the text is a debate over the legal principle of stare decisis, which directs the court to respect precedent when making decisions.

Stare decisis helps solve a particular problem for the Supreme Court, which must prove itself an institution operating across time, not simply an amalgamation of nine voices at any given moment. When it resists the impulse to overturn past decisions, the court builds in a continuity beyond what the opinions of its members would offer.

Roe was already revisited, in the 1992 Casey decision, and left mostly standing. Under the norms that have governed the court for decades, Roe should have been safe, not because the majority agrees with it today, but because the Supreme Court does not upend settled law based on what the majority believes today.

This is the subject of Chief Justice John Roberts’s disappointed concurrence. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis.” The dissent of the liberals thrums with even deeper anger: “Here, more than anywhere, the court needs to apply the law — particularly the law of stare decisis.”

But stare decisis, as the justices know far better than I do, is not a law. And so, in his majority opinion, Samuel Alito brushes it aside….

The argument Alito makes throughout his opinion is simple: The court can err. When it has erred, it must correct itself. Make all the fancy arguments about stare decisis you want, but if a decision is wrong, then it’s wrong, and it must be revisited. To take his perspective for a moment: There is something maddening about being appointed to a seat on the land’s highest court but told to leave standing the decisions you and four of your colleagues consider most noxious.

On some level, he is right. Stare decisis makes little sense. The problem is that, without it, the Supreme Court itself makes even less sense. It is just nine costumed political appointees looking for the votes they need to get the outcomes they want. And the further we travel down that road, the more the mystique that sustains the court dissolves. There is no rule, really, that the Supreme Court must be obeyed as the final word in constitutional interpretation — that, too, is a norm, and one that the court has no power to enforce. If all the Supreme Court is left with are the rules, soon enough there will be no Supreme Court to speak of.

So what would it look like to rebuild the rules and norms of the Supreme Court so they made sense in a polarized era — so that it could be an institution that moderated our political conflicts, rather than worsening them? It got little notice, but there was, recently, a thorough and important effort to think through that question. It will be the subject of next week’s column.

Unquote.

If what Mr. Klein says in his next column is worth sharing, I will.