The Supreme Court retains a strong but largely undeserved reputation as a protector of the liberties guaranteed by the Constitution. In fact, there is a long history of right-wing Supreme Court majorities serving as dead hands to enforce reactionary policies favored by political minorities who have lost electoral power, or even wars.
Most notoriously, a right-wing court favored the South’s radical, pro-slavery positions before the Civil War and, after that war, played a critical role in nullifying Reconstruction and instituting Jim Crow; the so-called Lochner court devoted years to voiding federal and state health and safety regulations and other progressive laws, and even tried to nullify the New Deal in the midst of the Great Depression until it was faced with the threat of FDR’s improperly labeled “court-packing” plan to expand the body.
We are smack in the middle of another period in which a deeply reactionary court is at direct odds with the will of the majority of American voters, and could well get much, much worse, very soon.
In 2000, a five-justice right-wing majority literally stopped the counting of votes and installed George W. Bush as president. Under Chief Justice John Roberts, nominated by Bush, the court has embarked on a years-long offensive against the right to vote, including by gutting the heart of the Voting Rights Act. The Roberts court has also challenged Congress’s lawmaking authority with an audaciousness not seen since the 1930s.
Following the audaciously effective scheme to deny President Obama’s final Supreme Court nominee a hearing, let along a floor vote, to allow the packing of now Justice Gorsuch onto the court, the not-so-smoothly executed replacement of Justice Kennedy with Federalist Society darling Brett Kavanaugh and now the the imminent mid-election packing of Amy Coney Barrett onto the court, we can expect the tribunal’s right-wing majority to soon engage in an even more aggressive attack on the democratic will of the nation—particularly if Democrats take control of the elected branches of the federal government.
Most immediately, there is a very substantial possibility that five or more of the right-wing justices will vote to nullify the Affordable Care Act by or before June of next year, thus dismantling much of the legal and regulatory architecture of the health-care industry in one fell swoop.
A Barrett court is also likely to revive Lochner-era limitations on the power of the federal government to implement regulations, as well as establish and maintain independent agencies like the Federal Reserve Board. Such decisions would, by design, create chaos in the government in very short order.
But if Democrats are elected in a few weeks’ time, with the exercise of sufficient will, they can solve the problem of a court at odds with the nation it serves easily, simply by expanding the court. Those who criticize that option as “radical” have the matter entirely backwards. What is radical has been the GOP scheme to capture and pack the Supreme and lower federal appellate courts in order to systematically implement a deeply unpopular policy agenda that could never be enacted by Congress.
In order to avoid the catastrophic results the nation has suffered in other periods when it was subject to reactionary court majorities, it is not only reasonable, but necessary for the elected branches to act to protect democracy by reining in a court that has stepped outside of its proper constitutional bounds.
The Framers did not grant judges the power to be the final word on the meaning of the Constitution. It was a Supreme Court justice who seized that power—sowing the seeds of some of the problems the nation is experiencing today.
Article III, which established the federal judiciary, was remarkably skeletal. It mandated the immediate establishment of only a single court, the Supreme Court; but it did provide that judges “shall hold their offices during good Behaviour,” meaning for life, and can’t have their compensation cut. That made federal judgeships the perfect patronage appointments. But one president and his key adviser had the insight to recognize that federal judges could, if they played their cards right, also carve out a huge power center for themselves.
John Marshall, a Revolutionary War veteran and advocate for ratification of the Constitution, was a leader of the Federalist Party who became one of the most powerful men in the nation when, in 1800, President John Adams appointed him secretary of state. But Adams lost the next election to his nemesis Thomas Jefferson, who took office in 1801, leading the losing side to cook up a plan: the nation’s first court-packing scheme, which was largely implemented by Marshall. The exiting president filled a host of judicial positions, from lowly magistrates to the position of chief justice of the United States, which went to Marshall himself. The lame duck Federalist Congress also passed a statute that shrunk the size of the Supreme Court from six to five (upon the next vacancy) so as to deny the incoming president any appointment opportunities.
After Jefferson took office, the Marshall court was presented with one particularly gnarly case, involving William Marbury, one of 42 justices of the peace whom Adams had appointed at the very end of his term, but who had failed to receive the written “commissions” formally decreeing their appointment before Adams left office, and were likewise denied them by Jefferson’s secretary of state, James Madison. In fact, it had been Marshall’s job to deliver the commissions meaning Marbury was the victim of the new chief justice’s own error.
The Supreme Court was embroiled in controversy from the start of the Jefferson administration, as Congress passed legislation voiding Adams’ court-shrinking plan, began impeachment proceedings against a prominent Federalist judge and even went so far as to cancel the Supreme Court’s 1802 term.
In this context, the Marbury v. Madison case presented a quandary for Marshall. If the court ruled that Marbury was entitled to take office, it risked having its ruling being defied by Jefferson, and thereby effectively destroying the legitimacy of the court, its only source of power. But Marshall came up with a brilliant legal, and political, solution. The court held that Marbury had a right to sue for his commission, and further that Madison had a legal obligation to give it to Marbury, but the court also ruled that the Judiciary Act, a legislative enactment, had unconstitutionally conferred on the Supreme Court authority to issue writs of mandamus (a form of judicial order) mandating actions by executive branch officials, like Madison—and, for that reason, it ruled that Marbury had lost and could not take office.
The decision was a masterful sleight of hand. Marshall had ruled in Jefferson’s favor, but in the process he had established that the Supreme Court was the final word on whether a law enacted by Congress was or was not permissible under the Constitution. Once that rule was established, the court’s power was potentially massive, and Marshall himself (who went on to be one of the longest-serving chief justices) fully exercised that power.
Although the Federalists were out of power, and remained so thereafter, Marshall himself played a huge role in defining the Constitution in conformity with Federalist public policy principles. Most importantly, Marshall established that the Constitution's Commerce Clause largely guaranteed the free flow of goods among the states and prohibited interstate tariffs and other schemes that could prevent the United States from having the integrated national economy that Hamilton and his fellow Framers contemplated, and likewise provided the federal government with substantial power to regulate interstate commerce.
While Marshall’s legal acumen, as well as the merits of many of his signature rulings, are largely viewed positively, if not with a bit of awe, even today, he also established the viability of what Pete Buttigieg recently called a “dead hand” Supreme Court—that is, a judicial body, with justices appointed by a former president or previously dominant party, that exercises vast political power from the bench, sometimes sidelining the democratically elected branches. As later history would prove, that meant that the court had the ability to serve as a power center for reaction, and to frontally challenge laws and policies that were strongly endorsed by the voters, and the legislators and presidents they elected.
A reactionary court helps lead the nation to civil war. The most notorious example of the Supreme Court acting as an agent of reaction, and even an igniter of war, is the 1857 Dred Scott v. Sandford decision.
The case concerned Scott, an enslaved person who was “owned” by residents of Missouri. Under the Missouri Compromise, Congress had decreed the newly admitted states west of the 36°30′ Parallel to be non-slave jurisdictions, excepting Missouri. Scott’s owners later took him into Illinois and to the then Wisconsin Territory, both of which had been deemed non-slave jurisdictions. Scott then sued, seeking a decree that he had become no longer enslaved once he left Missouri, but lost in the Supreme Court, which was then presided over by Marshall’s successor, Roger Taney, who belonged to a wealthy Maryland slave-owning family.
Scott’s case was part-and-parcel of the increasingly disputatious question of the future of slavery in the nation. While the idea of ending slavery was then largely reserved for a small group of radicals, it was becoming increasingly clear that the future of the nation’s economy, as well as its geography, was shaking out in favor of the North and against the South’s slave-based plantation economy. The response of some in the South was to take increasingly radical positions, including by challenging the Missouri Compromise’s bar on new slave states in the West. In the Dred Scott decision, the Supreme Court weighed in on the side of the South.
Taney’s opinion explaining the court’s ruling against Scott was a veritable cornucopia of gifts for Southern radicals. He ruled that Scott was not a “person” within the meaning of the Constitution, and therefore had no right to sue. But Taney did not end there. Entirely unnecessarily, he went on to rule that the Missouri Compromise itself was unconstitutional, because it deprived slave owners of “property,” meaning the humans they owned, in breach of the Fifth Amendment. Taney’s judicial endorsement of the maximalist Southern position entirely failed to tamp down the brewing interstate conflict over slavery; rather, it amped it up, as the leaders of non-slave states—where most of the population of the nation lived and where most of the nation’s economic growth was happening—greeted it with rage.
On the other hand, radicals in the South greeted it with cheers, and were encouraged to continue to hew to their maximalist position in favor of the expansion of slavery to the west. It was only a few years later, in 1861, that the Southern states seceded and started the Civil War.
Many Americans recently had occasion to learn about the failed impeachment of Andrew Johnson, the Southern Democrat whom Lincoln had chosen to “balance” his ticket, and who became president following Lincoln’s assassination.
Johnson was a strong opponent of congressional efforts, under the banner of Reconstruction, to grant civil rights to recently freed enslaved persons, and played a key role in stymieing Congress’s efforts to institutionalize Reconstruction. But the Supreme Court, dominated by reactionaries, arguably played a far more significant role.
In the wake of the war, Congress passed and states ratified a series of constitutional amendments intended to remake the Constitution to instantiate civil rights for African Americans as well as others. Key among then was the 14th Amendment—and at the heart of that addition to the Constitution was a provision stating that, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
The historical record makes clear that the Privileges and Immunities Clause was intended to prevent states from denying any citizens, including and especially African Americans, foundational, substantive rights, and the Amendment importantly allowed Congress to enforce this and other rights granted by the Amendment.
Not long after its enactment, however, in 1873, the Supreme Court used two cases concerning state regulation of the slaughterhouse industry to gut the Privileges and Immunities Clause, ruling that it only protected the rights of federal, not state, citizenship, a nonsensical proposition given that the 14th Amendment was enacted to address civil rights violations by states.
The court went on to rule in 1883 that the 13th and 14th Amendments did not give Congress the power to penalize civil rights violations by private persons, and only reached certain misconduct by states. That ruling virtually invited Southern states to place reliance on putatively private militias and gangs, such as the Ku Klux Klan, to implement the repression of African Americans.
Indeed, by the time the Supreme Court was done with them, large swaths of the Reconstruction amendments were largely left as nullities, and Congress’ power to address the imposition of institutionalized racial discrimination in place of slavery was largely vitiated.
The coup de grâce was the Supreme Court’s 1896 Plessy v. Ferguson decision, which gutted another clause of the 14th Amendment at the same time that it gave legal segregation a judicial stamp of approval. Rendered in the wake of the final withdrawal of federal troops from the former Confederacy, the decision reflected a consensus among Southerners and conservative Northerners on the court to effectively allow the South to have its way with African Americans.
The court nonsensically decreed that a Louisiana law relegating African Americans to Black-only rail cars was consistent with the 14th Amendment’s Equal Protection Clause because the cars were “separate but equal.” In substance, the court had turned its back on the post-Civil War amended Constitution and issued a judicial decree ending Reconstruction, despite the laws and constitutional amendments that required it.
The rule of Plessy prevailed until 1954, and permitted, among other things, the de jure, or overt, segregation of schools in the South and the de facto segregation of them elsewhere.
During the ensuing decades the Supreme Court, then consistently populated by right-wing Southerners and Northerners, had little interest in revisiting its divestment of civil rights from the African Americans for whom the 13th, 14th and 15th Amendments had been passed. But the Court found a new use for the Reconstruction Constitution: to protect the increasingly prosperous business interests that flowered during the Gilded Age.
Over a period of years, the court invented out of whole cloth and implemented an entirely new set of constitutional doctrines, which it decreed vigorously protected the property interests of the wealthy, while simultaneously preventing states from protecting the rights of workers. Among other things, the court ruled in a 1905 case called Lochner v. New York that the 14th Amendment’s Due Process Clause protected what the court called the liberty of the individual contract. This “liberty” interest tied the hands of states and municipalities seeking to enact worker health and safety laws, which, the court reasoned, prevented workers from making the free choice to enter into employment contracts on terms they might otherwise decide to accept.
In Lochner itself, the court ruled that a New York law that limited, for health and safety reasons, bakers from working more than 60 hours a week violated the constitutionally protected right of workers to labor for as long as they wished, regardless of the danger to their health. As the Lochner doctrine expanded, the court not only nullified worker-safety laws, but also attacked labor unions, which many on the court’s right-wing majority considered likewise to be an impairment of the “liberty” of workers to negotiate employment terms individually.
As progressivism began to take hold in the federal government, and presidents and congresses began enacting federal laws that regulated the national economy and likewise protected the rights of workers and others, the court imposed a host of newly discovered constitutional limitations on those legislative and regulatory steps as well.
Matters came to a head during the early years of the Franklin Delano Roosevelt administration, when the remaining conservative majority on the court, centered on a group of four elderly conservative justices, began systematically striking down key parts of the president’s widely popular New Deal program in the midst of the Depression, including, in 1935, the president’s signature National Recovery Administration, even as the court continued its longstanding nullification of state worker protection laws.
FDR was careful to make his overwhelmingly popular legislative program, and not the Supreme Court’s intent on striking it down, the focus of his campaign for re-election. But FDR’s GOP’s opponents effectively placed the court on the ballot by declaring their certainty that FDR would try to limit the court’s jurisdiction or otherwise limit the power of its reactionary majority.
When, after his re-election, in 1937, FDR put forward his juridical reform package, it was actually relatively modest, by historical standards. FDR proposed a law under which if a justice declined to retire on their 70th birthday, a new seat would open up on the court.
FDR’s political opponents, both in and outside the Democratic Party, managed to defeat the proposal, largely by making it appear more radical than it actually was, derisively (and misleadingly) labeling it a “court-packing” plan. As legal historian Bruce Ackerman has explained, one of the leading Democratic opponents, Senator Burton Wheeler, actually favored a more radical proposal: to amend the Constitution to allow for congressional overrides of Supreme Court decisions, and it is entirely possible that such a step would have prevailed had the court continued its campaign to undermine the will of the elected branches.
In any event, the momentum for such reforms began to evaporate in March 1937, when one conservative justice, Owen Roberts, famously took the opportunity to switch his vote on a case in which the court had been poised, under the Lochner doctrine, to void a state minimum wage law. Instead, the court upheld it. From that point forward, both because the right-wing justices were chastened by the prospect of justices being added to the court, and because FDR began to get the opportunity to add more of his appointees as elderly justices retired, the court effectively got out of the business of attempting to judicially nullify New Deal laws and agencies.
In the wake of the New Deal and World War II, the court began to play a new, historically anomalous role as an expander of, and sometimes even moral leader in the area of, civil rights, particularly after Eisenhower appointed former California Governor Earl Warren to be chief justice,
The signal ruling of the Warren court, issued after deliberations that extended over two terms, was Brown v. Board of Education. That decision, in fact, undid the grievous damage that the court itself had worked by decreeing that Plessy’s separate-but-equal doctrine was wrong and at odds with the 14th Amendment’s Equal Protection Clause. The Warren court also finally upheld Congress’s ability to reach private discrimination, which it had denied in 1883, this time through the 1964 Civil Rights Act, a law grounded on Congress’ power to regulate interstate commercial activities, which Justice Marshall had first established in the previous century, and which the Supreme Court had begun to fully recognize in the post-Lochner era.
Perhaps the capstone of the Warren era came after the chief justice had left the court when, in 1973, the court struck down a state law criminalizing abortion; the Roe v. Wade decision was based on a fundamental liberty right the court belatedly recognized to be protected by the Constitution that was far afield from the purely economic “liberties” it had enforced during the Lochner era: the right to privacy.
Even as the court enjoyed a golden age devoted, among other things, to alleviating the consequences of its own prior bad acts, the seeds were being sown for a return to the court’s historical reactionary mean.
The Republican Party, beginning with the presidential candidacies of Goldwater and Nixon, made the demonization of the court part of their electoral appeals, first largely for its desegregation rulings and later for its ruling in Roe.
Over time, such attacks upon the court’s protection of civil liberties increasingly began to provide a central rallying point for right-wing constituencies which, with the election of Reagan, included an increasingly politicized white Evangelical movement. At the same time, the GOP’s business supporters were increasingly focused on attacking government laws and regulations in the wake of the New Deal, particularly those protecting labor rights and the environment, and began to view the courts as a likely mechanism for attacking regulatory regimes, given how effectively such attacks had been waged during the Lochner era.
Perhaps the most important harbinger of the gradual, but insistent, remaking of the courts by the GOP was William Rehnquist. Rehnquist, a former Goldwater supporter, had clerked on the Supreme Court while the Brown case was before it. As revealed in a memo he wrote during his clerkship, Rehnquist was strongly opposed to overruling Plessy, and argued that the court should allow de jure segregation to continue.
While Rehnquist could not single handedly remake the court into the reactionary institution it had once been, Republican presidents over time added like-minded justices to the court, and Reagan elevated Rehnquist to be chief justice, making that project more and more tenable.
As his power increased on the court, Rehnquist led it on what turned out to be a steady march to reinstate the limits on federal legislative and regulatory power that had marked the Lochner era. For example, the court began a project to ratchet back its power to regulate interstate commerce, and in the process variously nullified a federal law regulating guns near schools and a key part of the Violence Against Women Act. Judicial limits on federal environmental regulations and labor unions, a critical agenda item for the Koch Brothers and other GOP fundraising patrons, also began to occur with greater frequency, as the composition of the court began to tilt further and further rightward.
In 2000 the five right-wingers on the court audaciously took it upon themselves to literally decide the outcome of an election in favor of the Republican candidate, George W. Bush, after ordering Florida to stop counting the votes cast by citizens of that state and then preventing the counting from beginning again.
In retrospect, that decision plainly sent a message to the court’s right-wing majority that it would pay little or no price for nullifying duly enacted laws; after all, it had decided an election in favor of the GOP candidate. Accordingly, the caution that had marked the court’s approach to litigation challenges to Congressional enactments disappeared, and the court began to throw caution to the wind, regularly taking it upon itself to second-guess the actions of elected officials, particularly Democratic ones.
In 2005, in the wake of Rehnquist’s death, Bush nominated former Reagan administration lawyer John Roberts to take his place as chief justice. From the outset of his career, Roberts had been an avowed foe of the crown jewel of the civil rights movement, the Voting Rights Act, which had been repeatedly reauthorized by Congress with overwhelming bipartisan support.
In 2013, the four other right-wing justices joined Roberts in voiding, in Shelby County v. Holder, the heart of the Voting Rights Act, the provisions which required jurisdictions with a history of racially based discrimination to receive preclearance before modifying their voting laws. In the immediate wake of Shelby, state after state imposed law after law impairing the rights of African Americans to vote. Despite the ignominious consequences of the Shelby County decision, the court recently agreed to consider further challenges to the reach of the remaining provisions of the Act.
In addition, Roberts and the other right-wing justices ruled that there are no constitutional limits on gerrymandered legislative districting, when done for partisan reasons, despite (or a cynic might contend, because of) the fact that some gerrymanders keep the GOP in power in states where it regularly garners a minority of the vote.
With the ascension of Justices Gorsuch and Kavanaugh, the former sitting in a seat that Mitch McConnell and his fellow GOP senators held open for over a year in the (ultimately realized) hope of packing the court with a GOP choice, Republicans cemented the reactionary wing’s hold on the court.
But with the now-inevitable installation of Amy Coney Barrett to take the place of women’s civil rights icon Ruth Bader Ginsburg, the court is poised to take yet another momentous step toward reaction, and a potential clash with both the elected branches and societal consensus that could make the 1930s look tame.
As bracing as the prospect of having six right-wing extremists in robes seeking to remake government policy—and social life—may be, it is in many ways the inevitable result of the power grab that Chief Justice Marshall made at the beginning of the 19th century.
Once it became clear that political losers could use the courts as a mechanism to get their way, it was all but inevitable that an organized, well-funded and determined group of schemers would set out to capture the courts. And that is just what has happened
As Sen Sheldon Whitehouse demonstrated during the Barrett hearings, GOP-affiliated contributors have devoted huge sums to remaking the federal (as well as state) court systems, and have done so for very specific reasons, including to nullify court precedents they don’t like and laws they disfavor.
The current right-wing justices, particularly those installed by Trump, are not merely dispositionally conservative; rather, they have each been selected solely because of their demonstrated inclinations to rule nearly every time in favor the GOP’s favored constituencies and interest groups, most importantly polluters and other business interests as well as politicized social “conservatives” and, of course, the GOP itself in election-related matters.
Accordingly, there is no question that the court, if it maintains a six-justice reactionary majority, will further void labor rights, hamstring environmental regulation and further cut away at and ultimately eliminate women’s reproductive rights, as well as other civil rights and protections against discrimination.
Moreover, if a Democratic president and Congress embark on the kind of ambitious progressive agenda Joe Biden has promised, a direct conflict with the court is not only likely, but inevitable. We saw a preview of such a clash during the Obama administration, when the court came within a hair’s breadth of voiding the entirety of the Affordable Care Act. Furthermore, even as Roberts upheld most of the Act, he rejected its primary legal rationale grounding the Act, which was based—like the 1964 Civil Rights Act—upon Congress’ authority to regulate interstate commerce, thereby signaling that other similarly ambitious congressional enactments will be vulnerable to judicial challenge in the future.
Accordingly, a battle on the scale of FDR's fight against the late-era Lochner court could be imminent. Furthermore, unlike the aging justices, whom FDR was able to nudge and threaten to terminate their efforts to blockade the New Deal, the current court’s reactionary majority is highly unlikely to retreat in the face of popular resistance. These are justices, after all, who were given their jobs precisely because of their unwavering commitment to a range of deeply reactionary policies.
Furthermore, given that five or more of the court’s soon-to-be six right-wing members are likely to be focused on implementing an agenda favorable to the GOP’s most reactionary constituencies, beginning, but hardly ending, with voiding Roe, the cultural and ethical clash between a deeply reactionary court majority and a rapidly changing nation is likely to amplify social conflicts. The experience of the pre-Civil War era, in particular, shows just how high the costs of such clashes may be.
While the cataclysmic clash between the democratically elected branches and judicial reactionaries promised by a Barrett court is all but inevitable if nothing is done; but the executive and legislative branches in fact have a great deal of room to act under our constitutional system.
First and foremost, the court itself can be expanded. All it takes is a statute providing for the addition of several seats to the Supreme Court. Biden has, astutely, refused to take a position, and indeed expressed hesitancy regarding the prospect. As FDR recognized, there is little political benefit to making court expansion the focus of a presidential campaign; rather, a prospective president must focus on gaining support for the policies they plan to implement.
Yet Biden also said this week that the GOP’s conduct during the Barrett confirmation process, which has run roughshod over long-established norms and practices (including the purported”rule” against confirming Supreme Court nominees during a presidential election year, which the GOP employed to justify blockading Obama’s last nominee), will inevitably have an impact on Biden’s decision-making should the Democrats take the Senate and the White House.
The same will be true of the conduct of the court itself. If the Supreme Court, as well as the lower appellate courts (which Trump has loaded with similar reactionaries) demonstrates immediate antagonism for a Democratic Congress’s legislative agenda, and a President Biden’s regulatory one, support within the party for restructuring the court is likely to increase (as would inevitably have happened at the end of the 1930s, had the court not ceased its campaign to undermine the New Deal).
Many critics of court expansion argue that it will lead to a tit-for-tat expansion by the GOP if it regains control of the government, and thereby lead to a purportedly untenably large Supreme Court, and to destructive battles for control of it.
To that, I have two responses.
First, given the extreme, and outrageous, ends the GOP has pursued to capture the courts to date, including by keeping not only the Scalia seat but also numerous appellate court seats vacant until past the end of the Obama administration to permit them to be systematically packed under Trump, there is no reason to fear the approach of hardball tactics; they are already here.
Second, a substantial expansion of the size of the court would not only be an acceptable outcome, but could well turn out to be a salutary one. The tremendous power that the Supreme Court has accumulated since 1801 has often come at great cost to the nation. The small number of justices who sit on the court, typically until the ends (or near-ends) of their lives, have, in a very real sense, aggregated for themselves quasi-monarchical powers.
A court in which the number of justices grew substantially, and the power and prestige of individual justices declined, could well be a good thing for the nation. Furthermore, a large and less cohesive Supreme Court could well have a hard time going head-to-head with the elected branches, in an effort to continue to impose its public policy and political choices on the nation. Certainly, the emergence of a weakened court would place greater onus on the Congress and the president to govern the country, since judges might be less able to routinely intervene by making policy and governance decisions for them.
But that, after all, is what the Framers contemplated, and should be what the voters prefer.