I’m ambivalent about what the Democrats should do about the US Supreme Court for two reasons. One, I’m not a legal scholar. Two, I’m not a legal scholar. I repeat myself to emphasize the dearth of my authority on the matter. But honestly, I doubt anyone truly knows what to do about a high court with two illegitimate justices on it. 

What I can say with confidence is that it’s good that we’re having such a debate. That we’re having such a debate indicates our national discourse has shifted from the unthinkable—for instance, “packing the court”—to the OK-let’s-think-about-it. A liberal democracy like ours must evolve with the times. But institutions can’t evolve, indeed won’t, if the public is unwilling to re-imagine what they should be and why.

The debate comes and goes, and for now, that’s all right. As we get closer to November 2020, I’d expect arguments to intensify. (At least I hope they do!) The Times’ Jamelle Bouie and the Post’s Greg Sargent kicked off another round of debate recently, both of them reminding us that even if the Democrats win the White House and the Congress, they face a Supreme Court prepared to strike down any and all progressive legislation. 

What to do? Pack the courts, Bouie said. All of them.  

Add two additional seats to account for the extraordinary circumstances surrounding the [Neil] Gorsuch and [Brett] Kavanaugh nominations. Likewise, expand and pack the entire federal judiciary to neutralize Trump and [Mitch] McConnell’s attempt to cement Republican ideological preferences into the constitutional order (my italics). 

Bouie isn’t alone in rethinking the court. In 2014, Norm Ornstein, a conservative congressional scholar, argued that justices should have term limits. The best remedy for a polarized court, he said, is ending lifetime appointments and establishing 18-year terms. My friend Noah Berlatsky argued last year that presidents should appoint one justice per term so that nominations are tied to elections and the political will.

---

“Judicial review” was not handed down by God.

---

Samuel Moyn says term limits don’t fix the court’s anti-majoritarian nature. He suggests limiting the kinds of cases the court can decide. He told my friend Josh Holland that if a party controls both chambers of Congress and the White House, “you can basically say, under Article Three of the Constitution, what the judiciary is allowed to do.” (Doing so would entail fighting with, you guessed it, the court.)  

Then there’s the most radical option—Congress stripping the court of its ability to overturn laws. “Judicial review,” as it’s called, is not in the US Constitution. The power to strike down enactments is the result of an 1803 ruling. The poli-sci textbook I have at my side says, where is it, oh yes, here it is, that judicial review is “something of a usurpation.” The court said it has that power because the court said it did. (Again, Congress would have to fight with the court over any law limiting its power.)

All of these have major up- and downsides, and like I said, I’m pretty sure no one really knows if any of these would produce desired outcomes. What we can say for sure is that something that started out as “something of a usurpation” has become over the years a timeless and indisputable principle of democracy in which the highest court in the land has the final say. And what we can say for sure is that’s not how it should work.

“Judicial review” was not handed down by God. The founders didn’t enshrine it. It was the product of men making decisions they believed were right and proper at the time in which they made them. These choices, in a liberal democracy, are and should be up for debate, especially when two of the Supreme Court’s nine members are illegitimate. 

All of the above solutions are rooted in the presumption that the court is the ultimate constitutional authority when it’s not, according to Louis Fisher. In a new book called Reconsidering Judicial Finality, the constitutional scholar argues that the court’s power is proportional to how much power the three branches of the federal government, the states, civil society and the public are willing to give it. In his conclusion, he wrote: 

No single institution, including the judiciary, has the final word on constitutional questions. A process of give-and-take and mutual respect allows an unelected Court to function in a democratic society. Accepting an open dialogue between the elected branches and the courts is a more fruitful and realistic avenue for constitutional interpretation than assuming the judiciary has superior skills. …

The Supreme Court is not the Constitution.

To treat the two as equivalent is to abandon individual responsibility, the system of checks and balances, and the quest for self-government. Individuals outside the courts have a duty to reach informed and personal judgments. What is constitutional and unconstitutional must be left for us to explore, debate and rethink (italics are mine).

I don’t know if we should pack the courts. I don’t know if any solution would work. But I do know that we must debate the question, and more importantly, that we must move the debate from the unthinkable to the OK-let’s-think-about-it. Judicial finality has become sacred, immune or untouchable. It is no such thing. We must move our national discourse so the people understand the Supreme Court isn’t the final say.

They are.

—John Stoehr