Gee, Who Coulda Known??
So a new Yahoo/YouGov poll shows public confidence in the Supreme Court cratering. Whereas, in the fall of 2020, 70% had either “some” or “a lot” of confidence in the Court, and only 7% had “none,” now the first number is down to 50%, and the latter is up to 26%. I would like to take this opportunity to say “I told you so.”
For me, supporting court-packing (euphemistically called “court expansion” these days) has always been a direct outgrowth of the very reasons why I support judicial review in the first place. I come by those reasons honestly, as I draw them more or less directly from my grandfather Charles Black’s 1960 book The People and the Court, which I consider the most important work of American constitutional theory ever written. Here’s the basic sketch of his argument for why judicial review is an utterly necessary component of a democracy such as ours.
The key fact about our republic is that our government, unlike say the British government (at least on the classic theory of their constitution), is one of limited powers. That doesn’t just mean the enumeration of power in Article I, Section 8; every organ of our government, state and federal alike, possesses limited authority, limited both by the authority of all those other organs and by the reserved rights of the People. But this poses a challenge for the government, because it means it has work to do in demonstrating the validity of its actions. Any measure, although adopted through the formally proper channels, may yet be invalid, null and void, if it exceeds the powers of the department that adopted it. This in turn means that there are going to be controversies about whether the government has acted legitimately, persistent and unavoidable controversies — for we can no more expect the government to refrain from exercising the powers it arguably has to advance the public good than we can expect those subject to arguable measures to swallow their objections.
Without some means of resolving these controversies, the legitimacy of the government itself may eventually fall into disrepute, as the validity of most of its activities is ultimately subject to lingering and quite plausible doubt. A solution is needed, and, so my grandfather argued, there is only one that can possibly work. Agreement on substance is not to be hoped for, of course. Nor can we simply allow the policy-making departments to have the last word as to the scope of their own powers; that would be to give up on the idea of limited power in all but name. (Even if this were thought desirable as to matters of individual rights, as for example Jeremy Waldron has famously suggested, it is entirely unworkable in a federal system like ours.)
No, the solution must inevitably be a tribunal of some sort, part of the government but separated from the policy-making branches, given the authority to police the boundaries of the other branches’ powers and to invalidate measures that exceed those bounds. Again the point is not that people will agree with all of the tribunal’s decisions; we do not hope to eliminate the disagreements themselves. Rather the hope is that people can accept that the tribunal ought to be authoritative, even when it is (so they think) wrong in a particular case. They accept this because they understand the nature of the problem the government faces, and they understand that this is the most that could be done. Their objections to the various measures to which they are subject have been given as fair a hearing as possible; the state has done about the most it could do to stay within the bounds of its legitimate authority. Hopefully this will be enough for the state itself to retain its air of legitimacy, and, as my grandfather notes, although success was by no means a sure thing, “in our history, it did work, in sufficient measure.”
(As an aside, note that the tribunal’s power to invalidate is absolutely essential to its legitimating function. If it could only render judgment, but not prevent enforcement of those measures it judged ultra vires, then the result would be the exact opposite: a public seal of illegitimacy on a great many measures that were nonetheless being enforced! The overall feeling of legitimacy as to the state would evaporate in a moment.)
Can it still work? It seems quite likely that, later this summer, a great number of people in this country will be subject to measures, hideously intrusive measures, which they have good reason to consider unlawful. This is exactly the kind of situation that poses the kind of existential risk to a government of limited powers that my grandfather discerned. But these measures will all have been approved by the tribunal that resolves these sorts of matters for us. Will that be a comfort to those subject to these laws? Will they feel, can we even say to them with a straight face, that everything that could be done has been done? That their objections have been given a scrupulously fair hearing by the very government which is now taking action against them?
Of course not.
What’s more, it has been both obvious and inevitable that it would come to this since November 9th, 2016. As soon as it became clear that McConnell’s gambit would work and they would purloin Scalia’s seat out from under Merrick Garland, this basic scenario has loomed on the horizon: some day soon the Court would overturn Roe, and those stolen seats would provide the margin, and no one who was upset by the merits of that decision would have the slightest reason to accept the Court’s authority to issue it.
If judicial review is as important to maintaining the legitimacy of a government such as ours as I think it is, would such a scenario not tear the Union apart?
That’s the thing: it’s already gone. The thing that cautious institutionalist types would like to preserve is just gone already. I am literally second to none in my appreciation of the importance of the Supreme Court and its role in maintaining our system of government! But it’s gone. It’s gone and it’s not coming back, not just by closing our eyes and pretending not to see the problem. The Republican Party has played falsely for its control of the Supreme Court, and everyone basically knows that; how could those of us who oppose the agenda they would impose through it not lose confidence in the Court? And a Court that commands the confidence of only half the population is no good: it cannot perform its vital function.
Some years ago I would end this post with a point or two about how this shows why we need court-packing. And it does! Not that packing the Court would do anything to restore public confidence in its legitimacy in the short-term; presumably that 50/50 split would stay about the same, just with the two sides inverted. But an assertion of democratic control over the Court, unthinkable in normal times, is infinitely preferable to the profane monstrosity it has become. And it could, if done right — unlike many of its advocates, I am quite keen that it be done right in this way — be a first step toward a judicial restoration some day down the line.
Today though my thinking has largely moved on from court reform: I am focused less on this Court as a problem in itself and more on the warped system that produced it. Really that is just pulling on the same thread: we need court reform, and we cannot realistically get it because of the design of our political institutions, therefore we need to change the design of those institutions — although, once we have mustered the sovereign will to do this, court-packing as such would be almost beside the point. (Of course we cannot realistically change the design of our institutions through our existing process of amendment; the inexorable implication of that fact is left as an exercise for the reader.)
But. All that is about looking forward, into our (terrifying) future. This post is about looking back, and about saying, now that public sentiment seems to have come around to what I have been saying for years: I told you so.
