In 1957, Robert A. Dahl, a father of modern political science, published a canonical article about the Supreme Court’s “most peculiar position” in American democracy. “Much of the legitimacy of the Court’s decisions rests upon the fiction that it is not a political institution but exclusively a legal one,” Dahl wrote. And yet, “from time to time its members decide cases where legal criteria are not in any realistic sense adequate to the task.” These decisions, among the court’s most momentous, turned on vague or ambiguous words in the Constitution, like “establishment of religion” and “due process of law,” with precedent and expert opinions on both sides. By making these rulings, the court cast itself as a “national policymaker” — and in so doing raised a difficult question: When should the justices, unelected figures in robes, reflect majority will and when should they stand for “Right or Justice” so as to protect minorities from tyranny by the majority?
To appraise the court’s performance, Dahl did a statistical analysis of its record of striking down laws enacted by Congress, the elected embodiment, he presumed, of majority will. For the most part, he found that the court didn’t thwart the public over the long term, and he ended with a prediction: “Except for short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions, the Supreme Court is inevitably a part of the dominant national alliance.”
Dahl expressed this confidence at a placid moment in the court’s relationship with the public. Three years earlier, the justices took care to rule unanimously in Brown v. Board of Education, their historic decision to desegregate public schools, and in a follow-up ruling in 1955, they explicitly allowed school districts to proceed slowly rather than ordering precipitous change. The ruling in Brown polled well, and Dahl didn’t foresee the protracted unrest over school integration that was just over the horizon, politicizing a decision that the court tried hard to place above politics.
Nor did he anticipate just how thoroughly the Supreme Court would become a site of partisan rancor in the ensuing decades. Today we’re accustomed to thinking of major rulings in fully political terms and expecting fierce conflict over their consequences. The temperature rises whenever it comes time to nominate a new justice, especially when the court’s ideological balance is in play, as it is now, with President Donald Trump’s choice of Judge Brett Kavanaugh to replace Justice Anthony Kennedy.
A conservative Republican president, Ronald Reagan, selected Kennedy. Yet the distance between his appointment and Kavanaugh’s reveals how far the conservative movement has traveled in law and in politics. Unlike Kennedy, Kavanaugh was preapproved by the Federalist Society, founded in 1982 to strengthen the conservative movement’s presence in law schools and the judiciary. The organization has groomed prospective judges and nurtured theories like originalism, which supply a method of constitutional interpretation that has led conservative judges largely to positions they ideologically favor. Last year, the Federalist Society helped Trump triumph with two parts of his base, evangelicals and big business, by contributing to a list of judges presented to him that included Neil Gorsuch, whom the president picked for Antonin Scalia’s empty seat — and who began fulfilling the base’s hopes over the course of his first term.
While Kennedy supplied the fifth vote for many conservative victories, he also participated in some of its big steps to the left, specifically in embracing marriage equality and reducing the scope of the death penalty. On abortion, he was a moderating force when conservative colleagues moved to gut Roe v. Wade. And by influencing the reasoning of conservative opinions he joined, Kennedy kept doors open that his colleagues would have closed. Though Kennedy ruled in June against Latino and African-American voters who challenged redistricting plans for congressional and state elections in Texas as a violation of the Voting Rights Act, he did not say that the law’s protections for minority voters should never apply to drawing electoral maps, the position taken by Gorsuch and Justice Clarence Thomas.
Since the 1930s, justices who served as swing voters or drifted ideologically have made it possible to think about the court in nonpartisan terms. Kavanaugh’s confirmation will probably break this long tradition. He represents the fulfillment of the dearest political wish for two generations of the conservative movement. Kavanaugh is a D.C. insider who has taken conservative positions as an appellate judge, and he has been a member of the Federalist Society since 1988, participating, for example, by hosting a dinner for admitted Yale law students in April. Barring a late-breaking surprise, the fifth and decisive brick of a conservative Supreme Court wall is about to be put into place. In the controversial cases that shape the public’s perception of the court, we can expect to see a full-blown partisan divide, with the conservative bloc, all Republican appointees, facing off against four liberal-moderates chosen by Democratic presidents.
Assuming Kavanaugh votes as his record suggests, the court will move to the right on several important fronts, even as the country’s demographics predict a shift of the electorate to the left, with more young voters and voters of color. Several priorities of the conservative legal movement already conflict with public opinion. The movement’s biggest target is Roe v. Wade, the 1973 decision that identified access to abortion as a constitutional right, Yet a poll in July by NBC News and The Wall Street Journal showed an all-time high in public support for the decision, with 71 percent saying that Roe should not be overturned. The conservative wing of the court has also focused on upholding voting restrictions, gerrymanders and purges of the registration rolls. In the 2010 Citizens United decision, the same justices opened the door to a massive amount of spending to influence elections. Polls show, however, that more than 70 percent of Americans don’t like extreme partisan gerrymandering and want to overturn Citizens United.
The conservative justices have also tipped the balance of power toward corporations and away from employees and consumers. In a series of decisions beginning in 2011, they made it harder for consumers and employees to sue companies collectively (by upholding the fine print in contracts that forces disputes into private, case-by-case arbitration, in the face of state and federal laws that would otherwise make such contractual provisions unenforceable). This is an unpopular development, too. In a 2015 national survey, Pew found that in a dispute with a bank, an overwhelming number of people — 95 percent — want the right to bring the dispute to a judge or a jury and 89 percent want the right to participate in a collective (or class-action) lawsuit. Finally, if the court continues down a path to deregulation by second-guessing rather than deferring to the decisions of federal agencies, like the Environmental Protection Agency, it will be at odds with polls showing that about 60 percent of Americans would like to see environmental regulations preserved or strengthened and think they are worth the cost.
Because of lifetime appointments, it’s possible for such disconnects between the electorate and the Supreme Court to last for years or even decades. In one sense, this is a feature, not a bug, of American democracy. The founders designed the system to make judges immune from the whims of the electorate, and some of the court’s most celebrated decisions have shielded minorities from the majority, Brown v. Board among them. Nonetheless, when the court has diverged sharply over time from the public, unpredictable counterforces have been unleashed. The judiciary is supposed to be the least dangerous branch of government, but when it falls out of step with the public, it can nonetheless strain the constitutional order — and the country — to the breaking point.
As a nation, we have been here before. At a few moments in our country’s history, the justices in effect became holdouts for an old national alliance long after the electorate abandoned it. In decisions that landed like thunderclaps, the court cemented a vision of the Constitution that most Americans no longer held.
The Supreme Court first failed miserably in the role of national policymaker in the run-up to the Civil War. In 1820, to preserve the balance of power between South and North as the country expanded, Congress passed the Missouri Compromise, admitting Missouri as a slave state and Maine as a free one. The compromise held until 1854. At that point, the Democrats controlled Congress and the White House, representing a coalition of Southerners who believed in slavery and Northerners who were willing to tolerate it, while the newly hatched Republican Party, which included abolitionists, began to push for more slavery bans in the West.
That same year, Dred Scott took the question of territorial trade-offs to the Supreme Court. Born a slave in Virginia, Scott asked for freedom on the theory that he was entitled to it from his time living in Illinois and Wisconsin, where slavery was banned, and later in Missouri, which recognized the legal principle that a person once free was always free. Politicians hoped the court would spare them slavery’s sting by brokering a legal resolution to the country’s most divisive issue.
When the court ruled against Scott in 1857 by a vote of 7 to 2, the majority went so far as to say that black people could never become citizens of the United States — and that Congress had exceeded the power granted to it in the Constitution by forbidding slavery in Wisconsin, or any other territory, in the first place. The first part of the decision was abhorrent; the second part was destabilizing. By casting aside the legislative compromise that held the country together for nearly four decades, the court helped undermine whatever common ground still existed between North and South. In the short run, the court’s decisions helped the South-aligned Democrats, the Harvard law professor Mark Tushnet wrote in a 2006 article in The Fordham Law Review, “but only at the cost of tearing the party and the nation apart a few years later.”
After the Civil War began, Northern Republicans took over Congress and mounted a frontal assault on the court, changing the number of justices twice between 1863 and 1866 (from nine to 10 to seven; the Constitution doesn’t specify a number) in an attempt to engineer a court that would support the Union and congressional plans for Reconstruction. It was “court-packing” — a way for the people, through their elected representatives, to assert direct control over the judiciary. Still, the court threatened to defy popular will once more, at least in the North and among the black population of the South. In 1867, Congress passed a law requiring the Southern states, in order to re-enter the union, to allow black people as well as white to vote to ratify the 14th amendment, written to undo the damage of Dred Scott by giving black people citizenship and equal rights. This plan was then challenged in the case Ex Parte McCardle, and Congress worried that the Supreme Court would find this key pillar of Reconstruction illegal. Congress rose up again, passing bills to strip the court’s jurisdiction over Reconstruction and returning the number of justices to nine.
Toward the end of the 19th century, the court turned again to protecting the interests of the powerful few — this time, wealthy corporations. In 1895, the justices began an unparalleled burst of conservative judicial activism by striking down the income tax, giving judges broad authority to stop labor actions and curtailing a new monopoly-busting law. A decade later, in Lochner v. New York, the court rejected a 10-hour limit to the workday for bakers passed unanimously by the State Legislature as a health-and-welfare measure. Enshrining freedom of contract as a constitutional right, Lochner effectively prevented Congress and the states from addressing workplace abuses. Lawmakers couldn’t even ban child labor, the court ruled.
We don’t know for sure what the public thought about those decisions — polling on the court’s approval rating didn’t begin until the 1970s. But Jane Addams channeled the frustration of working-class people when she said in 1908 that they viewed the judge as a man whose “sympathies and experience and his whole view of life is on the corporation side.” When the Democrats swept the presidency and both houses of Congress during the Great Depression, the stage was set for a giant clash. Congress and President Franklin Delano Roosevelt passed the New Deal to address inequality, and the justices blocked key parts of it. In a fireside chat in 1937, Roosevelt called them out for casting doubts “on the ability of the elected Congress to protect us against catastrophe.”
To address this problem, Roosevelt asked Congress to pass a bill that would let him add six new justices. The idea was to secure allies in toppling the old order. In the end, the court moderated itself. One conservative justice changed sides in 1937 to uphold a New Deal law by a vote of 5 to 4, and shortly after, a second announced his retirement. Court-packing has come to be seen as a reviled scheme, but at the time, the justices were widely criticized for being out of touch — “nine old men,” as the phrase went. Six weeks after Roosevelt floated his court-packing bill, a Gallup poll showed slightly more support than opposition. “If the public had not observed the Court switch direction, would the plan (or something like it) have passed?” Barry Friedman, a New York University law professor, asked in his 2009 book, “The Will of the People” about the Supreme Court and public opinion. “The consensus at the time was yes.” If the justices hadn’t backed down, it’s not at all clear that we would still blame Roosevelt and Congress for attacking the Court.
The next time the court frustrated the will of the electorate, it veered to the left. In 1962, when it was led by Chief Justice Earl Warren, the court voted 6 to 1 to ban prayer in public schools. The public was practically unified in protest. The fireworks continued when the court allowed busing to desegregate schools and issued a series of rulings that shielded criminal suspects from abusive police practices. On criminal justice, “the Warren Court was as far out ahead of public as the court of 1930s was behind it,” Jamal Greene, a Columbia law professor, argues.
The difference between the Lochner Court and the Warren Court, Greene contends, was the difference between benefiting corporations, which easily wielded political power, and safeguarding rights for minorities like African-Americans, whose votes were being suppressed. Liberals have generally celebrated the Warren Court’s version of counter-majoritarianism as necessary and even heroic. But there’s a contrarian view. In his classic 1962 book, “The Least Dangerous Branch,” the politically liberal Yale law professor Alexander Bickel urged the justices to exercise restraint. Where Dahl used the word “peculiar” to describe the court’s role in the democracy, Bickel chose “deviant.” If the justices realized their potential to move out of step with the public, he warned, there would be a political price to pay. And indeed, Richard Nixon turned the court into a punching bag in his 1968 campaign for president. “A cabdriver has been brutally murdered, and the man that confessed the crime was let off because of a Supreme Court decision,” he said — an early bid in establishing the court as a pre-eminent battleground for generations of impassioned conservatives. Their political energies have now brought us Brett Kavanaugh.
Today it is the American left, not the right, that is girding for a generation of bitter Supreme Court defeats. The only question, really, is how big the losses will be and how fast they will come. Consider a few possibilities.
In one version of the Roberts Court’s next chapter, the conservatives chart a cautious course through choppy political seas. Heeding the lessons of the past, the justices practice restraint. Conservative legal scholars have already begun assuring jittery liberals that it is in the interests of Chief Justice John Roberts to check the new majority’s ideological instincts, in order to safeguard the reputation of the court that bears his name. After all, Roberts twice refused to interfere with a signature piece of social legislation passed by a Democratic president and Congress, supplying votes to leave Obamacare in place in two of the most consequential nonpartisan rulings of the decade.
There is reason, however, to wonder if restraint will prevail. Simply by pruning back past precedents, the new Roberts Court can remake the law in areas like reproductive rights, public funding of religious education and police searches. Rather than reversing Roe v. Wade outright, for example, the conservatives could shut down abortion clinics over thousands of miles in the South and the West by giving states the flexibility to regulate them out of existence. Or the court could choose to overturn Roe. To religious conservatives, the case has become the court’s modern liberal sin (though when the decision came down in 1973, the seven votes in favor included five Republican appointees). The series of Republican appointees who refused to repudiate Roe, of whom Kennedy is probably the last, represent the disappointment that the Federalist Society, and President Trump, are determined not to repeat. Why would a solid conservative majority with the unquestioned power to revise the court’s past work leave Roe untouched? The justices could say, after all, that they were just returning the question of abortion access to the states. And they’d be right.
As a matter of the separation of powers, the serious drama would lie in a duel between the court and the elected branches. There is growing demand for judicial activism on the right. The label “activist” used to be one that conservatives lobbed at liberal judges (and that liberals sometimes embraced), but it was the right that lashed out at Roberts precisely because he did not strike down a democratically enacted law (the Affordable Care Act). Imagine that the next Democratic Congress and president, with the public behind them, enact a major law to address immigration, or climate change, or the growing power of monopolistic corporations. Or they pass Medicare for All.
Any of these legislative efforts could represent the will of a new national alliance on the left. If the conservatives were to vote as a bloc of five to strike such a law down, how would a sequel to the drama of 1937 play out? Republicans would presumably suffer the consequences in subsequent elections, but it could still take years before vacancies on the court created an opportunity to reshape it. In the meantime, calls for court-packing could become a clamor, or some other kind of end run around the court could gain momentum. Whatever form the public’s frustration took, the principle of judicial independence would be the loser.
There’s one more possibility, and it’s the worst of all for a democracy: Partisan entrenchment on the court could lead to partisan entrenchment in the other branches, as the law professors Jack Balkin and Sanford Levinson have argued, because of the court’s ability to influence the electoral process. Republicans tend to benefit when fewer people vote — and making it harder to vote, and harder for minorities to exercise political power, are already among the Roberts Court’s chief legacies. In his 13 years on the court, Roberts has consistently moved the law toward restricting access to the ballot. He joined majorities that upheld voter-ID laws and eased the way to purging voters from the rolls, each of which has a disproportionate impact on young and minority voters. In redistricting challenges, Roberts voted not to block extreme political gerrymanders, which make it harder for the party that is out of power to win it back, and to dilute the power of minority voters, who tend to favor Democratic candidates. In 2013, he wrote the opinion in the 5-to-4 case Shelby County v. Holder that shredded a key part of the Voting Rights Act. Kavanaugh’s record is shorter but similar. As an appellate judge, he upheld a strict voter-ID law in South Carolina, which the Obama administration found would disenfranchise minority voters more than others.
The conservative Roberts majority will no doubt frame future rulings on voting restrictions and gerrymandering as solidly grounded in law and the Constitution. And yet it could become increasingly difficult to believe the court is doing law, not politics, if a conservative majority of Republican appointees issued decision after decision that had the effect of helping Republican candidates win elections.
The Roberts conservatives could even block state efforts to affirmatively strengthen the democratic process. Three years ago, Kennedy joined the four liberals to uphold an Arizona ballot initiative that handed the task of redistricting to an independent commission. If courts don’t stop gerrymandering, then commissions are the only real hope of creating a more neutral process that would make elections more competitive and Congress less polarized. In November, five more Arizona-style initiatives are on the ballot, in Colorado, Michigan, Missouri, Ohio and Utah.
If Roberts gains one more vote for finding this solution to gerrymandering unconstitutional, his impassioned dissent in 2015 would probably become the basis for a new majority opinion. Roberts said then that transferring the power to redistrict from the legislature to a commission was a “magic trick” with “no basis in the text, structure or history of the Constitution.” If the voters of Arizona don’t like gerrymandering, then they could prevent it only by working to pass a national law or amend the Constitution.
Constitutional amendments were, in fact, a safety valve back when the Lochner Court pitted itself against the public. The 16th Amendment reversed the Supreme Court’s decision to block the income tax. The 17th Amendment created direct elections for the Senate. The 19th Amendment granted women the right to vote. In other words, during the long darkness of Supreme Court recalcitrance, the country came together to address inequality and make American democracy more direct and inclusive. These days, however, political polarization is so extreme that constitutional amendments, with the elected supermajorities they require, are essentially out of the question. Elections are the only obvious, if indirect, way for the public to express its discontent with a wayward Supreme Court.
Maybe a mobilized Democratic Party can somehow overcome all the barriers of Republican entrenchment as it did in the 1930s (and this time we get to skip the Great Depression). If a new dominant national alliance emerges to the left of the Roberts Court, maybe the justices will find a way to become a part of it. Or the Republicans could remain in power because they make a persuasive case to the voters, not because the court aids in eroding the democratic process. In other words, maybe Dahl turns out to be right. Let’s hope so. The democracy may be riding on it.