Progressives Need to Expand the Court - Which Also Means Ending Most Judicial Review
We Can’t Restore the Age of Roe- But We Can Create an Electoral System Better Protecting All Rights
With Dobbs, the last liberal resistance to expanding the Supreme Court will likely fall.
Those who hugged the idea of “judicial independence” and tradition have seen that made a mockery by manipulated Court nomination battles that blocked Merrick Garland for a year and then catapulted Amy Coney Barrett onto the Court in the last weeks of the 2020 election.
We have a Court whose six-member rightwing majority were all appointed by Presidents who lost the popular vote - save Clarence Thomas whose wife is implicated in illegal support for insurrection in 2020.
Yet this Court whose legitimacy is the weakest in American history has, rather than acting modestly, been one of the most radical activist Courts in US history. It joins the post-Civil War Court, which gutted federal Reconstruction laws, and the Gilded Age Lochner Court, which undermined most federal economic legislation, in the annals of anti-democratic engines of injustice.
Just look at the legacy of a generation of rightwing Court dominance:
The trashing of the Voting Rights Act in Shelby County, which has sped voter disenfranchisementmoney'sracist gerrymandering across the country.
Removing almost all restrictions on big money influence on our elections.
Overturning state and federal gun control measures, from Lopez to the Bruen decision on Thursday.
Limiting Congressional power to protect women from rape in Morrison
Striking down multiple state pro-labor laws (I wrote about two recent ones here and here) and overturning the Court’s own precedents in Janus to extend “right to work” rules to every public employee union in the country.
Exempting religious groups from laws banning anti-gay discrimination
Largely ending state and fedAdarandfirmative action laws in employment and most academic situations, from Aderand to Fisher
Privileging “property rights” to limit local zoning and environmental laws
Undermining the regulatory power of the executive branch, most recently in barring OSHA regulations for vaccines during the pandemic
And this new 6-3 Court is just getting started. They are threatening to return us to the Lochner era when Congress and the states routinely were blocked from enacting economic and social regulations of almost every kind, even as the Court itself imposes its own radical pro-corporate, Christianist vision for America.
So what is to be done?
Expanding the Court is now the obvious answer. More Senators are joining those like Elizabeth Warren who have made a case for expanding the Court for a few years - and activists are increasingly making the case for doing so.
But the challenges are obvious. To expand the Court means not only convincing essentially all Democratic Senators to do so but abolishing the filibuster as well.
And beyond those structural obstacles, progressives need to recognize that expanding the Court means largely abandoning judicial review. This might not seem obvious, but if a Democratic majority manages to expand the Court, the response by the Republicans when they next get a majority would obviously be to expand the Court to overturn any judicial interventions by liberal Justices.
Once the genie of partisan Court expansion is out of the bottle, the only stable equilibrium will be for Justices to take a more modest judicial position, rarely if ever overturning federal laws and deferring to state laws unless federal law has clearly preempted them. If the Court adopts a more modest posture, it would lower the energy in Congress to try to adjust its composition.
The New Deal Scorn for Judicial Review
In fact, this was exactly the position the Court largely took for a generation after FDR attempted to expand the Court in 1937.
That year, at an initial meeting of the New York chapter of the National Lawyers Guild, formed by progressive lawyers to support the New Deal, the 300 lawyers in attendance endorsed “packing the Court” and advocated amending the constitution to “limit the power of judicial review of legislation.” The National Convention would largely endorse this position a few days later.
For decades before the New Deal, many progressive groups had called for ending judicial review, particularly labor unions that had felt the brunt of injunctions and other judicial activism. And abolitionists and Reconstruction-era Radical Republicans denounced judicial review for most of the 19th century- as I detailed here.
While FDR’s Court packing plan failed, enough conservative Justices switched their position to uphold New Deal legislation that a new era of judicial deference to decisions by the elected branches became the de facto standard. As new Justices were appointed by FDR, Justices in decisions like United States v. Carolene Products Company (1938) would declare most regulations "presumptively constitutional" under a deferential standard of review known as the "rational basis test.” The Court would no longer second guess decisions by the elected branches except in exceptional circumstances.
How Legal Liberalism Replaced the New Deal Opposition to Judicial Review
The one exception noted in Carolene Products, in what famously was its Footnote Four, the situations where “discrete and insular minorities” - read African Americans and other minorities - were disenfranchised by Jim Crow so they did not have a chance to participate in the “political processes ordinarily to be relied upon to protect minorities.”
This exception would largely swallow the anti-judicial review philosophy among New Deal liberals and birth the modern era of “legal liberalism” as some came to call the devotion to the Warren Court a generation later. Partly because of the Senate filibuster as well, the Supreme Court would promote many civil rights policies that normally would have passed in a functioning democracy — the House would pass civil rights laws as early as the 1940s - adding to the philosophical attachment of many liberals to the Court.
The New Deal Court was initially divided between those like Felix Frankfurter who wanted almost no judicial review and those like Hugo Black, who wanted specific interventions when clear violations of the Bill of Rights occurred, particularly in areas of attacks on free speech and the rights of the accused. But Black would find himself on the seemingly conservative side of the Court in the 1960s as his liberal brethren adopted a more expansive attachment to judicial review.
Black would not be on the Court by the time Roe was decided, but he was the major dissent on its predecessor, Griswold v. Connecticut, which overturned the criminalization of contraception. He readily agreed it was a stupid and “evil” law, yet he argued that his fellow liberals would rue the day if they began overturning laws just because they wanted to second-guess the legislators’ decision. Citing the history of Lochner and similar cases where the Court blocked child labor and minimum wage laws, Black argued that any “loose flexible. uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts, and worse for the country.”
Black presciently argued liberals would easily rue the day they reopened the door to Lochner-style judicial power. If liberal judges pushed policies beyond what elected leaders would support then, it was relatively easy to expect judges in a more conservative period to race in the opposite direction.
Griswold’s successor case, Roe v. Wade, became the cornerstone of modern liberals’ attachment to judicial review, but it’s notable that even Ruth Bader Ginsberg has expressed discomfort with the “privacy” framing of the right to abortion and would have preferred a more incremental approach, letting elected branches speed ahead to protect abortion rights as many were already doing. Ginsberg like a number of other scholars worried that the backlash against Roe may have slowed the momentum for legislative change and instead energized the rightwing backlash against it.
But that backlash made many liberals cling all the harder to defend the Supreme Court, erasing a lot of institutional memory that liberals had once been fierce opponents of judicial power - until it was too late and the rightwing began leveraging the authority liberals had invested in the Court to push their far more activist agenda in the conservative direction.
We Won’t Return to the Age of Roe- But Can Rebuild our Democratic Institutions to Actually Work
Even if progressives organize and expand the Court, we can’t restore Roe. Not only had it largely been eviscerated in the details over time - see Justice Roberts decision in Dobbs “upholding” Roe while also endorsing the Mississippi anti-abortion law - but even if the decision was restored on paper, it would just be one election from repeal by new expansions of the Court.
But here’s the good news. The major reason many liberals think we need Roe is that there is no federal law protecting abortion rights. But any movement that creates the Congressional power to expand the Court will inevitably need to abolish the filibuster and many of the other anti-democratic legislative traditions that often made the Court seem the only safeguard for our rights.
The House of Representatives has already passed a bill codifying Roe as law - so a majority that can expand the Court will also be a majority that can defend abortion rights as well.
But what that new Court majority will be able to do is systematically dismantle the judicial activism of the current rightwing court while promoting the end of judicial review as a new political compact to remove judicial nominations from ongoing political warfare. The Court will obviously remain important since it gets to interpret the meaning of federal laws - but that is a power that will be subject to check by a Congress no longer hamstrung by the filibuster and able to rewrite laws if elected leaders disagree with the Court’s interpretation.
There may be a small role for times when the Congress in the details of its legislation haphazardly undermines individual rights, but a reasonable rule of thumb would be that such constitutional interventions should require unanimity by the Justices. It’s not coincidental that two of the most honored Supreme Court decisions, Brown v. Board and Gideon v. Wainwright, were both unanimous decisions. If the Court is going to second-guess the elected branches, it makes sense that the law be so clearly unconstitutional that no Justice agrees that the law is valid.
But overall, the Court should recede to become a far less important institution, befitting an unelected branch of government in a democracy.
At the same time, liberals can recapture the New Deal viewpoint that progressive policy will thrive more in an age where judicial review is largely irrelevant.