Over the weekend, Representative James Clyburn (D-SC) made waves by offering his support for court packing, specifically adding four new justices to bring the grand total to 13. That headline occluded some of Clyburn’s sharper commentary. Clyburn said that SCOTUS “has decided to reverse course and take this country back to those rulings of Justice Taney, that said, ‘No Black man has any right that white man must respect.’” Here, Clyburn was referencing Roger Taney’s notorious Dred Scott opinion in 1857.
I think Clyburn’s statement should rightly be seen as a major event in the Democratic Party’s evolution on SCOTUS. But I think the most important thing for Democrats to do is to keep their heads on straight. My philosophical predisposition towards remembering what game you’re playing requires me to offer a crystal clear narrative of what the Democratic Party’s objective might be.
Two Ways of Thinking About Juristocracy
I think you could offer an overly stylized distinction between two different ways that scholars think about juristocracy. The first camp is historicized and rooted in American political development. This camp sees juristocracy as an institutional development whereby courts have subsumed political questions over time. SCOTUS and the federal judiciary started off as weak institutions. Gradually, they became incredibly powerful through, among other things, strategies of judicial self-aggrandizement.
Okay, but then there’s a second camp that you can read as working through an analytical philosophy of what democracy requires. These folks may be less rooted in American history. They oppose juristocracy on principle because it is incompatible with democratic self-rule.
Why distinguish between these two camps? I think the first group’s grounding in American history makes them more likely to focus on the unique problems of American juristocracy in a way that could prove confusing. You see, most countries don’t have our problems. Across many corners of the world, apex courts are forces for egalitarian change, democracy, and something like the rule of law. (Not universally true, but more often than not.)
That’s not how SCOTUS operates. Our Supreme Court helped instigate the bloodbath of the Civil War by issuing the Dred Scott decision (the same decision invoked by Clyburn over the weekend). Dred Scott stood for white supremacy and denied the descendants of enslaved Africans the prospect of American citizenship. After the War, SCOTUS helped undermine Reconstruction. Years later, I (and others) would predict the outcome in Trump v. Anderson by simply acknowledging that SCOTUS bends over backwards to kill off Reconstruction Amendments.
SCOTUS continued its campaign against American democracy in the early twentieth century. In Myers, the Court birthed the unitary executive theory that is currently being deployed to remake the American state.
The only time that SCOTUS has robustly acted like a well-functioning apex court was in the middle of the twentieth century. This was the era defining fluke known as the Warren Court. Because of the “long” New Deal, the Court was remade by FDR’s Democratic Party. Briefly, the forces of center left legal liberalism held power on the Court. This sort of hostile takeover, it should be noted, was taken off the table by the 22nd Amendment.
But, regardless, the good times didn’t last long. In the 1971 Powell Memo, the more conservative elements of American life plotted to seize the juristocracy that the Warren Court helped instantiate with all the fiendish delight of a Skeletor meme. The Warren Court was replaced within a generation by a Court that returned to SCOTUS’s long-run trajectory—weaponized reactionary politics.
The first camp of historicized juristocracy critics are more likely to focus on American juristocracy and thereby avoid any philosophical rejection of juristocracy qua juristocracy. That’s a difference that could really matter in our political moment. But I want to argue that the difference is irrelevant for present purposes.
Court “Reform” vs. Court “Smashing”
“When I set out to lead humankind along my Golden Path, I promised them a lesson their bones would remember.” — Leto II, God Emperor Dune
A focus on court “reform” might lead people towards trying to overcome the problems highlighted by the historicized opponents of American juristocracy. Jeez, if SCOTUS is so pathological, we ought to reform it in order to get a well-functioning apex court.
That is theoretically possible, but it’s not in the cards anytime soon, perhaps in our lifetimes. Because SCOTUS’s pathologies are historically recurrent, we might infer that its problems flow from structural features of American government. Lifetime tenure, appointment and confirmation by politicians, a bare majoritarian voting requirement within the Court, and a bicameral legislature hemmed in by the proto Federalists and Antifederalists of 1787, all add up to create the perfect conditions for a minoritarian institution that can work to subvert American democracy.
Could you fix these problems? Well, yeah, theoretically, yes. You could have time-limited terms. You could provide for nonpartisan appointments. You could require SCOTUS to reach something closer to unanimity whenever it strikes down federal legislation. And you could strengthen Congress and habituate it to checking the Court.
The problem is that fixing any one of the Court’s problems would be a generational political project. And Article V of the Constitution keeps us from doing large-scale reforms in one go.
The bottom line is that you cannot durably fix this kind of long-run institutional pathology in the constitutional system as it is currently devised.
Court “reform” is a contradiction in the near term, likely across our lifetimes. There are real and largely easy reforms for the lower courts, as discussed in the forthcoming Harvard Law Review Forward. But SCOTUS is too pathological. Even if you remade it as a bastion of lefty virtue, the Warren Court teaches us that you can’t make that situation stick.
What’s my point? The Democratic Party is just either confused or is obfuscating if it talks about Court “reform.” The problems with SCOTUS cannot be remedied with small-beans ethics reform.
Now the long-term goal is plain. If you are on the left, if you believe in multi-racial democracy, then your long-term goal should be to build the social formations that would allow the country to abandon the Constitution wholesale. You can’t do that today because the country is too divided and the left is too weak. You’re probably not going to live to see the mountaintop. Your goal is to keep alive the struggle.
In the short term, Court “reform” is a waste of time. The point is something more like Court “smashing.” If you can’t keep SCOTUS from producing reactionary juristocrats, you have to fill those juristocrats with the fear of God. You need to make them weaker and leave them with a memory so sharp that they feel it in their bones.
This is why court packing is important. The critics of court packing argue that it will lead to the politicization and weakening of SCOTUS because the GOP, once in power, will themselves try to pack the Court to even the playing field.
Yeah . . . that’s the whole point. The strength of court packing, if you’re a Democrat or a leftist, is that it puts the GOP in an impossible bind. Either you eat a progressive SCOTUS or you further degrade the institution by forever smashing the allusion that it is anything other than a partisan football. And once you smash Humpty Dumpty, putting him back together again would be require a bipartisan, generational project.
To be clear, you need to do more. You need to take away their white temple and put the juristocrats back beneath the Capitol where they belong. These subterranean juristocrats should have their clerks taken away, their jurisdiction limited, and their lives made a living hell.
The point is pain. They need to understand that they exist in subservience to We the People and our elected representatives. Once cowed, you work to build the social formations most conducive to progressive change.
On Playing It Straight
I think it’s important to learn from FDR’s mistakes.
FDR’s mistake was that he had a compelling argument for Court reform that he refused to make. After the landslide of 1936, he could have played it straight and told the American people that an unelected Court was threatening the survival of the Republic. Congress, supreme guardian of that Republic, needed to break the impasse. That would have made Court packing the culmination of the New Deal revolution.
Instead, when FDR introduced the plan on February 5, 1937, he wrapped it in a sexless story about judicial administration. The judiciary suffered from congestion, elderly judges lacked the capacity to keep up with modern litigation, and a “constant infusion of new blood” was necessary. Everyone knew, however, why Roosevelt suddenly wanted as many as six additional Supreme Court Justices.
That mismatch between obvious purpose and asserted justification hurt him in several mutually reinforcing ways.
First, it squandered the extraordinary democratic mandate of 1936. Roosevelt had just won 523 electoral votes and Democrats possessed enormous congressional majorities. The natural argument was majoritarian: the people have chosen a government capable of addressing the Depression, and SCOTUS could not be permitted to constitutionalize laissez-faire political economy against democracy.
Indeed, when Roosevelt finally spoke candidly in his March 9 fireside chat, that was the case he made. He said that the people were “in the driver’s seat,” accused the Court of behaving as a “policy-making body” and “third house of the Congress,” and declared that the country had to “save the Constitution from the Court and the Court from itself.”
Second, the pretext shifted the burden of proof onto Roosevelt. Had he openly attacked juristocracy, opponents would have had to defend what the Court was actually doing: invalidating minimum-wage legislation, agricultural regulation, industrial policy, and other enactments of elected governments. Instead, Roosevelt invited a factual dispute over whether elderly judges were actually overworked. That was disastrous terrain. Chief Justice Hughes could answer the administration’s administrative claims with docket statistics and demonstrate that the Supreme Court was keeping up with its work. The attack therefore looked not merely controversial but contrived. Contemporary retellings emphasize that Hughes’s intervention demolished the workload justification.
I think it makes a tremendous bit of sense for Democrats to play it straight, unlike Roosevelt. We live in a populist moment in which people care more about authenticity than institutional abstractions. Everyone will know what this is really about. Democrats need politicians who can play it straight with the American people and tell them that they must rescue the Constitution from the Court.
The fact Supreme Court justices are so unaccountable they accept bribes act in secret make things up out of whole cloth should lead to most of them being impeached some going to prison. They think the court is sovereign not the people I've come around to thinking Congress should be where the majority of power should be. Yes there's going to be executive orders like how the current guy is governing that's limited to a presidents term in office. Really the SC has no legitimacy. The best thing to have done in 2000 was have a run off.