The following is the first installment in a TPM series, “Not Safe At Home: Solutions For Our Democratic Crisis.” As America battles the coronavirus, this series takes a look at fixes the next Congress and President should consider to how our democracy works — ideas that predate the coronavirus, and that will resurface after it has passed. This essay is part of TPM Cafe, TPM’s home for opinion and news analysis.
Many smart progressives today argue for various plans aimed at depoliticizing the Supreme Court, often through elaborate and difficult-to-enact schemes that involve changing how the court is constituted and how each justice is appointed. One oddity of these reform schemes is that if you had the political power to enact one of them (i.e. the White House, supermajorities in Congress, and, in some cases, enough state legislatures to ratify an Amendment), you’d likely also have the power to do simpler stuff, such as appoint better justices to the Court.
But there is a deeper and more interesting problem. Depoliticization schemes aim to make the Court something it has never been. The Court is no umpire, standing apart from politics. Instead, it has always been engaged in what scholars sometimes call “high politics” or constitutional politics. The lesson of the first 150 years of American history is that when you believe the Court is profoundly wrong, you don’t fix the Court through depoliticizing reforms. You confront the Court through politics. When the Court is far enough out of step with Congress, the President, and the American people, the elected branches can use a range of constitutional hardball tactics to induce the Court to change direction. These begin with fights about who should be on the Court, but they don’t end there. It’s worth knowing this history because we may soon need to dust off the rest of the playbook.
The framers of the Constitution envisioned a politics without political parties. The collapse of this vision was almost comically instantaneous. By the election of 1800, the first two parties were at each other’s throats, fighting for (among other things) control of the courts. President John Adams and his Federalist party lost the election, but attempted to entrench their allies in the federal judiciary through two techniques that became time-honored American strategies of court-packing. First, a lame-duck session in early 1801, the Federalist majority in Congress created many new federal judgeships, which Adams quickly filled (the “midnight judges”). Second, they adjusted the size of the Supreme Court — downward, from six members to five (effective on the retirement of any of the existing six) — in what turned out to be a futile attempt to block incoming President Thomas Jefferson from appointing anybody to the Court.
Lincoln clashed openly with the Supreme Court at the start of the Civil War. When pro-slavery Chief Justice Roger Taney ruled that Lincoln lacked the power to suspend the writ of habeas corpus, Lincoln simply refused to obey the ruling. In 1863, with the war raging, in an effort to reduce Southern power on the Court and entrench pro-union control, the Republican majority added a tenth justice (who turned out to be the gun-toting Californian Stephen J. Field, a pro-union Democrat and advocate of economic liberty). After Lincoln’s assassination in 1865, the Presidency passed to Vice President Andrew Johnson, another pro-union Democrat, but one with more dangerous views: Johnson was determined to eviscerate Reconstruction and allow ex-Confederates to regain power. As part of their protracted battle with Johnson, which would eventually result in his impeachment, the Republicans in Congress in 1866 reduced the size of the Supreme Court from ten justices to seven — meaning that the first three justices to depart would not be replaced. This time the tactic worked. Johnson was unable to appoint any justices to the Court. Johnson’s successor, Republican Ulysses S. Grant, the former Union general and our most pro-Reconstruction President, was much more closely aligned with Republicans in Congress. Once he was safely in office, the Republicans increased the size of the Court back up to nine justices, where it has remained. Grant got to fill one seat on the Court immediately, and soon filled three more.
The most interesting thing about this early history for twenty-first century Americans is not necessarily the method partisans in Congress used to secure control of the Court. Adding and subtracting justices is perhaps the bluntest, most obvious method they could have devised, given that the Constitution says the justices have life tenure but doesn’t say how many there should be. The most interesting thing about these early fights is that Americans, from the start, have understood the Court to be a branch of government engaged in constitutional politics.
The “high politics” of the Supreme Court is not exactly the same as regular, low politics. We don’t expect or want justices to strike down every law they disagree with. But the most important debates about how to interpret the Constitution — pro-slavery or anti-slavery, pro-federal power or pro-states’ rights — also tend to be central axes of our politics. They’re often near the heart of what divides the parties and the American people. The problem is: what do you do when the Court is out of step with Congress, the president, and the people on such important questions?
The evolution of the Republican Party is a fascinating story all its own. By the end of the nineteenth century, its vision of economic liberty had morphed into a defense of wealth, corporations, and capital, against labor, government regulation, and taxes. The Republican-dominated federal courts, including the Supreme Court, advanced these views as a constitutional vision. The federal courts in those days routinely issued injunctions blocking union organizing tactics such as strikes and picketing. When farmer-labor populist unrest swept the country and a Democratic Congress enacted a peacetime income tax, in 1894, the Supreme Court reversed a century of precedents to strike down the tax as exceeding congressional power. None other than Justice Stephen J. Field wrote that the tax unconstitutionally discriminated against the wealthy. “The present assault upon capital is but the beginning,” he wrote in his opinion: we were hurtling toward “a war of the poor against the rich.”
The populists and progressives who favored redistributive taxation responded to Field and the conservative justices by calling for a constitutional amendment to overturn the decision. This strategy eventually worked: the 16th Amendment, granting the federal government the power to tax incomes “from whatever source derived,” was ratified in 1913. But that was the first and last time in modern American history that the “let’s reverse a single bad Supreme Court decision with an Article Five Amendment” strategy has ever succeeded.
When the Great Depression hit, the Supreme Court was still dominated by its pro-business, anti-labor, anti-redistribution Republican majority. President Franklin Roosevelt and the Democrats in Congress began to fight the Depression by enacting key components of the New Deal; the Supreme Court quickly found reasons to strike them down. In his 1936 campaign, Roosevelt campaigned against both the “economic royalists” and the Supreme Court. He argued that the Court’s constitutional vision was nothing more than a “new despotism wrapped … in the robes of legal sanction.” He famously threatened to increase the size of the Court and pack it with new justices. This plan never had the votes in Congress, and went nowhere. But the Court backed off. It didn’t strike down a single New Deal statute after 1937, acquiescing instead to a new constitutional vision of national congressional power to regulate the economy. In that way — the most important way — FDR’s campaign against the Court was not the failure some assume it was, but a massive success.
FDR’s confrontation with the Court provides the clearest template for the set of conflicts that are likely in our future: conflicts between more progressive elected branches and a more conservative Court. Indeed, many of the key axes of disagreement are lifted straight from the 1930s. Does the Constitution protect the right to strike, or the right to not have your business picketed by strikers? Does it protect a broad power to tax — perhaps to enact a wealth tax? How about the power to build strong federal systems of social insurance, such as universal health insurance and unemployment insurance? Or the power to block plutocrats from buying politicians? These are simultaneously political questions and constitutional questions. To change the Court’s answers, Congress may need to play some constitutional hardball.
In addition to the time-tested strategy of threatening to add justices, Congress could attempt to pursue various other, more exotic strategies of constitutional hardball in its coming confrontations with the Court. For instance, consider jurisdiction-stripping: providing by statute that the federal courts, including the Supreme Court, do not have the jurisdiction to hear some particular type of challenge to a particular statutory provision. Oddly enough, this is probably legal. Congress could also place triggers in legislation to dissuade the Court: Write the statute to hold that if program X is struck down by a court, then program Y will appear in its place — where Y is even less politically appealing to the Court’s majority than X, but Y sits on such firm constitutional foundations that striking it down would leave the Court even more politically exposed. And so on. The objective of such hardball tactics is not to depoliticize the Court, but to deter it from proceeding down its path of economically-conservative politics dressed up in constitutional clothes. Ideally, there is no need to carry out the biggest threats, such as packing the Court. The best outcome, as in 1937, is for the Court to back off.
Confronting the Court works best with a tailwind of wide and deep popular support. It has not yet been tried in the era of Fox News, which could present special challenges. Nonetheless, it is our best hope. The only real umpires in American politics are the American people. If they find the Court out of bounds, the elected branches may be able to push the Court back into line. It has worked before.
This story has been updated in light of helpful comments the author received from Harvard law professor Mark Tushnet.
Corrections: This story initially stated that Chief Justice Roger Taney ruled “for the Court” that President Abraham Lincoln lacked the power to suspend the writ of habeas corpus. In fact, Taney issued the ruling while riding circuit as circuit Justice. The story has been updated to reflect that.
Also, this story initially stated that the 16th Amendment was the only time in U.S. history that an amendment was used to reverse a single bad Supreme Court decision. In fact, this did happen one other time, in a very different era: the 11th Amendment, in 1795. The story has been updated to reflect this.
Joseph R. Fishkin is the Marrs McLean Professor in Law at the University of Texas at Austin School of Law. His first book, Bottlenecks: A New Theory of Equal Opportunity, was published by Oxford University Press.
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