The Overreaching Court

I have been asked to offer some comments on “what ‘coping strategies courts around the world have developed to safeguard their institutional autonomy against attacks and structural interventions by governments.” This is undoubtedly an important, even urgent question.  As is true, though, of but almost all legal questions, especially questions of constitutional design, its answer depends very much on specific context.  The discussion is provoked, no doubt, by developments particularly in Hungary and Poland.  But my own reflections are very definitely those of someone shaped by my American identity.  Not only am I a U.S. citizen; I am also someone on “the left” with, therefore, distinctive views about government in general and the role of American courts in particular.  I have no doubt at all that I would offer very different analyses were I asked to comment on Hungary, Poland, or Israel, about which I know much less. Or, just as relevantly, my comments might well be different if I were asked to focus on one or another of the fifty states within the United States, several of them at least as large as many members of the European Union.  Begin with the fact that, as in my home state of Texas, judges are elected instead of the product of one or another appointment mechanism.  But I will confine these remarks only to the national level of government within the United States and, even more particularly, the United States Supreme Court.

The Court’s approval ratings

A September 2021 Gallup poll showed the “approval” of the Court at 40%.  Since then, however, the Court’s general approval ratings have plummeted, no doubt as a result of a spate of decisions in June 2022.  The best-known is undoubtedly the Dobbs case, in which five conservative justices joined in reversing the almost half-century-old precedent of Roe v. Wade that had protected a woman’s right to reproductive choice, including abortion.  Thus on June 22, 2022, the Gallup organization reported the lowest ratings in history.  Only 25% of those polled “say they have ‘a great deal’ or ‘quite a lot’ of confidence in the U.S. Supreme Court, down from 36% a year ago and five percentage points lower than the previous low recorded in 2014.”  To put it mildly, this scarcely demonstrates any great confidence level in what is often said to be the most important apex court in the world.  It should occasion no surprise that an increasingly number of op-ed articles are challenging the practice of judicial review and/or advocating significant changes in the procedures by which members are appointed or the number of justices, currently nine.

Even if the Court continues to poll better than Congress with regard to what might be called “trust-worthiness,” this is cold comfort for those who recognize that the effectiveness of the judiciary depends on what political scientists call the “diffuse support” by people who might not be very happy with a particular result or policy.  As political scientist James Gibson argued some years ago, the Supreme Court in particular could always prevail in the “court of public opinion” because in any situation, there would be, say, 35% who affirmatively liked a given decision, perhaps 35% who would be opposed to it, and the remaining 30% who would say, “it’s not my job to decide tough legal cases; that’s what we pay the Supreme Court to do, and I assume they’re doing their best.”   If the diffuse support collapses, as Gibson suggests may be the message of some recent studies he has done on the response to Dobbs, then the Court would be operating in a much more perilous situation relative to its own sociological legitimacy.

Politicians wearing robes

Why shouldn’t diffuse support be diminishing?  More and more Americans may be coming to the perception that Supreme Court justices are simply “politicians wearing robes,” appointed by highly politically-attuned presidents (and confirmed by similarly sensitive senators) to look kindly on the principal constitutional agenda of the party responsible for their getting to the Court.  This is no less true, presumably, of the newest member of the Court, Justice Ketanji Brown Jackson.  Chief Justice Roberts might have plaintively asserted a couple of years ago that there are no Democratic justices or Republican justices, but that is accepted by almost no sophisticated observer of the Court—and even unsophisticated ones appear more and more dubious.  Politicians and pundits alike seem more willing than in the past to engage in full-throated attacks on the Court, from both the left and the right.  It is now commonly pointed out in the press that no justice appointed by a Republican president (Thomas, Roberts, Alito, Gorsuch, Kavanaugh, and Barrett) is to the left of the three appointed by Democratic presidents (Jackson, Sotomayor, Kagan or, for that matter, the now-retired Justice Breyer).  It is true that there are sometimes surprising coalitions in given cases, usually relatively minor, but in the cases most likely to reach the front pages of leading newspapers, the votes are often 5-4 or, indeed, 6-3.

To be sure, what can accurately be described as a conservative Republican Court did not join in Donald Trump’s efforts to stymie the election.  For that they deserve some credit.  But that good deed took place against its 2013 gutting, in a 5-4 decision that included the late Justice Antonin Scalia and retired Justice Anthony Kennedy in the majority, the banner Voting Rights Act of 1965.  (Both, of course, joined in the Court’s notorious 2000 decision in Bush v. Gore that effectively named George W. Bush the next President of the United States.). The majority has also been eager to gut any and all attempts to regulate campaign finance or to control the partisan design of single-member voting districts—the only ones allowed now in the United States at the national level.  It is easy to believe that the overall American electoral system has become one of the worst in the world from the perspective of overall fairness, however defined.  (The Supreme Court cannot be blamed, however, for two of the most clearly anti-democratic features of the American political system, the United States Senate and the Electoral College.). And, in the very important area of statutory interpretation, particularly involving the rights of corporations or labor unions, it is only somewhat hyperbolic to describe the majority as completely enlisted on the side of corporations against both their workers and disgruntled employees or customers of corporations who might wish to sue them.  Although Dobbs got the lion’s share of publicity—and evoked most anger—another crucial decision saw the conservative majority enunciate a brand new “major questions doctrine” that had the effect of limiting the power of administrative agencies to protect the environment, and perhaps much else, whenever the majority decided that the regulation in question was sufficiently “major” to require specific authorization by Congress rather than the more typical general delegation of decision-making authority.

So, frankly, the “institutional autonomy” of the apex court within the United States is not a problem, at least from the perspective of the justices themselves.  But those, like myself, who are appalled by the broad thrust of the Court’s decisions over the past two decades, feel quite differently.  Responding to pressure from within the Democratic Party, President Biden did appoint a distinguished commission, consisting overwhelmingly of law professors, which was charged with examining the state of the Supreme Court and reflecting on whether any changes were in fact called for.  Many within the Democratic coalition were calling for “court packing,” i.e., the addition of new seats to make up for two seats widely viewed as “stolen” from Democratic presidents.

The first involved President Obama’s nomination of the thoroughly mainstream, albeit Democratic, Judge Merrick Garland, following the death of Antonin Scalia in February 2016.  Senate Majority Leader Mitch McConnell quickly declared that he would refuse even to consider the nomination until after the presidential election later that year, on the ground that a president ought not make a nomination in the last year of his term before a new election.  It should be up to the winner to pick the justice.  McConnell won his bet, as the unexpected victory of Donald J. Trump allowed Neil Gorsuch to succeed Scalia.  (Garland is now the Attorney General of the United States.). McConnell’s purported principle evaporated when Ruth Ginsburg unexpectedly died on September 18, 2020, less than two months before the election of that year.  It did not matter, as McConnell and Trump rushed through the nomination and confirmation of Judge Amy Coney Barrett, who took her seat on October 27.  Quite obviously, the winner of that election, Joe Biden, would have nominated someone else.  McConnell’s actions were not “unconstitutional,” but they certainly exemplified an extreme version of what Mark Tushnet has labeled “constitutional hardball,” i.e., the willingness to take advantage of every legal prerogative, whatever the consequences for the perceived integrity of the overall political system.  As the political scientist Robinson Woodward-Burns has observed, “constitutional hardball” is most likely to be played by political elites who believe that they are likely to be the future losers in “ordinary politics” and thus must engage in drastic action to preserve their power.  This, of course, is a version of Ran Hirschl’s influential argument in Juristocracy about the temptations for declining elites to load up constituitons with new protections of those specific “rights,” often including property, that they fear may come under attack under new political circumstances.

The Commission heard testimony from many different people, with different perspectives, including some younger professors, like Harvard’s Nicholas Bowie and Yale’s Samuel Moyn; both  were extremely critical of the power exercised by the modern Supreme Court and would not have been satisfied simply with the appointment of a new cohort of “activist” liberal judges.  For them, the problem was precisely an overreaching Court, which, they argued, diminished the possibility of a genuinely democratic political culture.  Other witnesses had relatively little objection to a “strong” Court, but wanted rectification of what they deemed the Republican “packing” via the failed Garland and the overhasty Barret episodes.  Yet others suggested that, at the very least, it was time to get rid of a true exemplar of American exceptionalism, the grant of “full-life” tenure to Supreme Court justices, with no term or age limits.  Ginsburg died at the age of 87, for example, while Justice John Paul Stevens had retired in 2010 at the age of 90.  Ginsburg had served since her appointment in 1993, Stevens since 1976.  Breyer has just retired at the age of 83, having served 28 years since his appointment in 1994.  One might well believe that all of them had served literally more than long enough, even if, as in my case, one generally admired their views (and their votes).

The autonomy of the Court

As might have been predicted, the Commission issued an anodyne report described as useful for classroom teaching but otherwise resolutely failing to evidence any sense of urgency or generating any movement for change either among the populace in general or within the elite class of politicians.  Even the elimination of life tenure in favor, say, of single 18-year-terms, still longer than most apex judges around the world, failed to garner sufficient support to be recommended.  (Eighteen-year terms would have the virtue, assuming a continued nine-judge Court and presidential appointment with senate confirmation, of allowing each president to make two appointments per term, but, at the same time, not allowing any single president to appoint a majority of the justices.) As with the electoral college, which a majority of the American public has favored eliminating in polls taken since 1944, it is likely that nothing will change.  And for the same reason:  Although there are some clever suggestions of what Tushnet has labeled “workarounds” in both cases, that would not require constitutional amendment, most lawyers—I am not among them—seem to believe that constitutional amendment would be required.  And Article V of the Constitution makes the United States Constitution, as a practical matter, the hardest-to-amend national constitution in the world.

So in the United States, it does not appear to be the case that the apex judiciary faces truly significant attacks on its autonomy, whatever the expressed unhappiness of an increasing number of critics.  At least some would argue that the problem is precisely the opposite, that the Supreme Court has a smug sense of its own autonomy and is willing to use it with reckless indifference to the consequences for the American polity overall.  Or, if one wishes to phrase it somewhat differently and perhaps more generously, the majority, firmly ensconced within its own ideological views as to what would in fact be best for the American polity, will not hesitate to act on those views, given that smart lawyers can always come up with ways of linking those views to whatever “legal methods” or “interpretive approaches” are fashionable at the moment.  Whether this makes the United States genuinely “better” than some of the other countries being discussed in this symposium would itself make for an interesting discussion.