The Court Packs Itself

In Justice John Paul Stevens's despairing words,
Bush v. Gore
has shaken "the nation's confidence in the judge as an impartial guardian of the rule of law." Coming as it does from a justice known for his sobriety, this judgment should give all of us pause--and I mean Republicans no less than Democrats.

We are not dealing with the normal disagreement on principle that attends every important Supreme Court decision. Justice Stevens is saying that the majority's decision to halt the Florida recount is a blatantly partisan act, without any legal basis whatsoever. This harsh charge will be taken up in the nation's law reviews; perhaps someone will even produce an intellectually serious defense of the Court's decision. But at the moment, the silence of leading conservative academics is deafening.

After a careful study of the Court's opinion, I have reluctantly concluded that Stevens is right. I say reluctantly because this view goes against the grain of my entire academic career, which has been one long struggle against the slogan that law is just politics. Curiously, the scholarly debate has recently been moving in my direction: Critical legal studies is in terminal decline, and its would-be successors are intellectually feeble. But I fear that Bush v. Gore will provoke another great renaissance of legal nihilism in our nation's law schools, a cynicism that will slowly erode general confidence in the system. Which leads to my question: If the Court has betrayed the nation's trust in the rule of law, how should the nation respond?

This is not the first time in history that the Supreme Court has made a decision that called its fundamental legitimacy into question. But on past occasions, the normal operation of the system provided a remedy. As the wheel of mortality turned and justices were replaced, the Court regained credibility as an independently elected president and Senate appointed new members. But this time, the president has not been independently elected. He is in the White House as a result of an unprincipled judicial decision that brought the electoral contest to a premature end. If such a president is allowed to fill the Court, he will be acting as an agent of the narrow right-wing majority that secured his victory in the first place.

In our democracy, there is one basic check on a runaway Court: presidential elections. And a majority of the justices have conspired to eliminate this check. The Supreme Court cannot be permitted to arrange for its own succession. To allow this president to serve as the Court's agent is a fundamental violation of the separation of powers. It is one thing for unelected judges to exercise the sovereign power of judicial review; it's quite another for them to insulate themselves yet further from popular control. When sitting justices retire or die, the Senate should refuse to confirm any nominations offered up by President Bush.

The Supreme Court has often functioned perfectly well without its full complement. During the 1990s, the justices have cut their workload dramatically and now deliver only 80 opinions of the Court each year. They can readily maintain this pace even if two or three vacancies open up. President Bush can fill these positions if he wins the 2004 election fair and square.

There is a precedent for my proposal. When President Lincoln was assassinated, he was replaced by Andrew Johnson, who threatened to nominate justices who would consolidate the conservative wing of the Court. The Reconstruction Congress responded with a statute providing that retiring justices could not be replaced. By the time Johnson left the White House in 1869, the Court was reduced to seven members. After the election, Congress returned the Court's size to nine, giving Ulysses S. Grant the power to fill the vacancies that it had denied his predecessor. The Reconstruction Congress explained that it was John Wilkes Booth, not the American people, who had transformed Andrew Johnson into the president. The citizenry would not have deprived Abraham Lincoln of the power to make appointments.

A similar logic applies today. The right-wing bloc on the Court should not be permitted to extend its control for a decade or more simply because it has put George W. Bush into the White House. During Reconstruction, Congress made this judgment by passing a statute shrinking the Court whenever a justice left the bench. But such draconian action isn't necessary. Forty senators should simply make it plain that they will block all Supreme Court nominations until the next presidential election.

Saying no will hardly suffice to restore the trust that the reigning judicial majority has so carelessly squandered in its recent decision. When the Court is reconstituted in 2005, it will have to work hard to convince the American people that the ideal of impartial justice is a living reality, not a naive dream. But reconstruction will not occur if President Bush is allowed to proceed unchecked. If he continues with business as usual, the next four years will be full of the feints and counterthrusts that brought us Justices Clarence Thomas and Anthony Kennedy .

To be sure, we can expect minor variations on familiar themes. This time the president will nominate a right-wing extremist who happens to have a Hispanic surname rather than a black face. And if the Democrats have the courage to block this gambit, he will follow up with another "stealth candidate" and count on the Senate to confirm her, as it did Kennedy.

Better simply to say no. If the Court is to regain the nation's confidence, we should reflect on what we have lost and what we must collectively demand of the next generation of justices. ยค