The Supreme Court should act as a counterbalance to the will of the majority. But this may require constraints. Here are six ways to reform the courts and one argument that we shouldn’t change anything.
In the 1803 case of Marbury v. Madison, the Supreme Court has taken for itself the power to determine the constitution’s meaning. Since then, federal courts have used judicial review selectively as a counterweight to majority rule.
The court has reached historic highs by taking sides with minorities who have no political power, especially in expanding civil rights. The typical example is the 1954 unanimous decision calling for an end to legally compulsory school segregation in Brown v. Board of Education – a ruling adopted by every recent court candidate across the ideological spectrum.
But historically, the court has also gone off course by taking significant action against majoritarian governments – and has been knocked down by the elected branches. In the aftermath of the civil war, Congress passed a law requiring southern states to rejoin the Union, allowing black people and white people to vote to ratify the 14th Amendment, which promised equal rights.
When this pillar of reconstruction was challenged in the Ex Parte McCardle case, Congress feared the Supreme Court would bring it down. So he stripped the court’s jurisdiction over reconstruction and brought the number of judges to nine.
At the turn of the 20th century, a period known as the Lochner era, the court discredited itself by placing companies’ interests above those of employees, bypassing laws regulating the workplace. And during the Great Depression, when the Supreme Court blocked critical parts of the New Deal, the justices found themselves in a standoff with President Franklin Delano Roosevelt. He asked Congress to raise the number of judges to 15.
But it wasn’t the President or Congress who blinked first. A conservative judge changed positions in 1937 to enforce another New Deal law, followed by a second that quickly announced his retirement.
In the decades following that confrontation, some liberals and conservatives have argued that the court exercised judicial modesty, or humility, by mainly refraining from canceling the selected departments’ work. But once an ideological bloc in the court has a majority, its members (and their supporters) tend to forgo moderation in favor of exercising its power.
Liberals celebrated a winning streak during Warren’s court days in the 1960s and 1970s. Into the current decade, they have appealed to the court to protect civil rights and prevent the establishment of religion, even if this was not following public opinion.
Now they are waking up to the downside of judicial supremacy — the opposite of restraint – in the hands of a conservative majority expanding to six. One of the most telling moments of Amy Coney Barrett’s confirmation hearing was her refusal to say whether she believed Medicare – the famous and long-established health insurance plan – was legal.
Democrats have highlighted the threat Judge Barrett could pose to another increasingly popular healthcare law, the Affordable Care Act. They know that if the Conservative judges cancel it in a trial due to start on November 10, they risk going overboard with their hand just as the conservative majority did in the 1930s.
The consequences go far beyond the A.C.A. An encouraging conservative court can again push the law forward to favor the power of corporations – over consumers, over employees, and the sheer will of people.
Do the Liberals sound the alarm now because they fear the impending results, not the judicial overrun principle? In part, yes, but that’s not the whole story.
There is also structural criticism of the role of the Supreme Court. The judges may lag slightly behind the chosen branches. They can, and often should be the protectors of minorities that the majority can trample (including religious groups, current conservatives). But if the court takes the country too far from the elected wards, the constitution gives Congress the power to keep the court in check.
The most pressing question now is whether the Conservative majority will decide on voting, enumeration, redistribution, and other foundations of fair and free elections that threaten the majority nature of American democracy itself. If conservative judges take these steps, they will bolster the Republican Party’s power that has given them their seats, just as an increasingly multiracial electorate is moving away from the current Republican coalition.