Erin Schaff/The New York Times via AP
The assembled justices of the U.S. Supreme Court, Washington, April 2021
This article is part of a Prospect symposium on judicial review and the separation of powers.
Ryan Cooper asks us, in response to a Supreme Court that, like an autoimmune disease, has turned on the constitutional democratic republic it is supposed to protect, why do we even have a Supreme Court?
It’s not a new question. As Cooper points out, throughout our history a formidable group of Americans have openly asked the same question—starting with Thomas Jefferson and including Abraham Lincoln.
But Cooper’s piece in certain ways slides by the issues involved here. Because what is involved is the question of what it means to be a constitutional republic. Which, today, is what we are. One of my favorite political lines of recent years is now-U.S. Rep. Jamie Raskin’s statement at a hearing of the Maryland legislature that there is a reason elected officials swear an oath of loyalty TO the Constitution, with their hand ON the Bible, rather than the other way around.
And this is the key to the real rot of the Supreme Court’s recent cases, and, in fact, most of its major cases beginning with Bush v. Gore.
One comes away from reading both Dobbs v. Jackson Women’s Health Organization and West Virginia v. EPA with a powerful sense of a Court majority pursuing a hidden natural-law agenda, one that pays lip service to the Constitution as a kind of holy object, while their actual substantive direction is taken from a pastiche of bigotries and poorly understood religious and political traditions of the distant past. Ultimately, this Court’s judicial philosophy seems to be to enforce these bigotries and prejudgments—as Malcolm X said in a very different context, “by any means necessary.”
But does that mean the idea of judicial review itself is a bad idea? That doesn’t seem right, either as political strategy or political theory. Because what judicial review does is give the Constitution meaning—it is why the U.S. Constitution is a politically important document, while the Chinese Constitution, say, is not. Independent judicial review is what makes us a constitutional republic.
Why should we care about that? We should care about it because the rights and freedoms guaranteed to us by the Constitution as interpreted through our pre–Bush v. Gore legal traditions are what bind us together as a nation. Our constitutional system as it has developed post–Marbury v. Madison is supposed to insulate those rights from the whims and political pressures of congresspeople, but most of all, from state legislatures. The courts—not just the Supreme Court’s, but the entire federal court system’s powers of judicial review—are what makes the idea of rights have meaning in our system and what makes the United States a single national community. And in the aftermath of Dobbs, we are seeing what happens when a fundamental right is made a plaything of state legislatures. It’s not just that the right to choose becomes a political football, but the unity of our nation almost instantaneously starts to fragment.
Rather than abandoning our Constitution, what our Constitution means needs to be rethought in tandem with the hardball politics that are going to be needed to restore balance among the three branches of government.
This type of legal refounding has happened before. Twice before in our nation’s history, the Supreme Court has tried to use its power to lock in grotesque injustices and dysfunction and to block positive, democratic change. And twice before, the Court has been reconstructed and the Constitution redefined. The first time in the Civil War, the Civil War itself resolved the issue at a terrible cost, which included Lincoln flatly refusing to abide by pro-slavery Taney Court decisions—saying in effect, “You and whose army?” Second, and hopefully more relevantly for us, during the Great Depression the Supreme Court rethought its opposition to the minimum wage and all other economic regulation when faced with a combination of FDR’s huge congressional majorities and the factory occupations by striking workers in America’s key industries.
A contemporary refounding would have to begin by casting aside the key post–Bush v. Gore Supreme Court decisions as a whole as exercises in arbitrary power rather than legal reasoning.
But more than reversing individual cases or even bodies of purported legal doctrine, the Supreme Court must repudiate the current Court’s way of constructing the law—what it tells the legal profession and the American public that law is—around the doctrine of originalism. Mining pre-Revolutionary legal texts in an attempt to divine what words in the Constitution meant to its drafters in circumstances those drafters could not have imagined is not a viable way to govern our country, even if the Court was pursuing it in good faith. But what cases like West Virginia and Janus show is that the Roberts Court is not pursuing textual originalism in good faith, or any other of the various impoverished intellectual doctrines that right-wing intellectuals have sought to construct to justify their desire to impose the dead hand of America’s slaveholders and Europe’s aristocrats on actual contemporary American life.
The job of refounding the Court is a complex task that will likely take decades. But we cannot wait for justices who will restore a genuine legal order to be appointed to begin to reconstruct it. That is the job of law professors, of journalists, of the justices and clerks who draft dissents today, as well as lower courts and state courts today, in the here and now, much as the Legal Realists built, step-by-step, an alternative to the Lochner era’s enshrinement of laissez-faire as law in the first decades of the 20th century.
The task at hand is not just a matter of legal theory. Our history teaches us that the Supreme Court is a profoundly political institution and that when it is broken, the solution lies in politics first and foremost. Congress has all kinds of tools to reform the Court, its control of the size of the Court being the best known but by no means the only one. The issue isn’t a lack of tools, it’s electing a Congress prepared to use them as FDR threatened to do in 1936-1937.
The Court has always responded to mass movements when they have enough mass, though it will never admit doing so.
Refounding the Court and our understanding of the Constitution will not be easy. It may seem easier to look for some way to have a meaningful Constitution without a Supreme Court. But that escape hatch really doesn’t exist. If we want a functioning constitutional democratic republic and a unified United States, we will need to fight for it, starting in November.
