Is the Supreme Court Afraid of Democrats?
Thomas Hawk, United States Supreme Court. Creative commons license: Attribution Non-Commercial 2.0 Generic (CC BY NC 2.0).
The Supreme Court released no decisions on any issues last week. It did not take on any surprising new cases or hear any unexpected arguments. There was very little that happened last week that had not been announced months before. But the oral arguments in Dobbs v. Jackson Women’s Health Organization seemed so negative towards the prior decision in Roe v. Wade that many on the left are convinced it will be overturned when the Court releases its decision next June. They are already in despair, strategizing about their next moves and projecting what a country without Roe might look like. The idea is that Donald Trump finally upheld his end of the bargain he made to win the support of evangelicals in the 2016 election. There has been little entertaining of any possible alternatives.
The oral arguments in the Dobbs case were certainly negative for abortion rights. Right-wing justices did not seem amenable to any potential compromise with Chief Justice John Roberts or capitulation to the cause of women’s health. Justice Sonia Sotomayor noted the nature of the arguments when she asked at one point, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” But oral arguments are not legally binding. There is still the question of whether the Court really will make a compromise or not, and what might happen to its legitimacy if it does rule against abortion rights.
Demands for court-packing flared up immediately after arguments ended last Thursday. There are two ideas behind these demands. One is that Democrats are on an uneven playing field with regards to the Court for a variety of reasons. Just as Nixon was able to appoint four justices by sheer luck, Trump was able to appoint three with the help of unprecedented obstruction by Mitch McConnell and a Republican Senate. In some Democrats’ view, Trump is also an illegitimate president who launched a riot to try to stay in power. The justices that he appointed are tainted as a result.
The other purpose of court-packing proposals is to modify the actions of the Court. Some Supreme Court justices are interested only in enacting their own ideological programs. Others are interested in the sanctity of the Court, its lofty position among the American people, and its legacy throughout American history. The possibility of changing the Court’s composition or modifying the rules under which it operates would threaten that legacy.
The threat of court-packing changed the behavior of a very conservative Court once before. The Lochner-era Court was more established than today’s Court. It operated with near-impunity for three decades, striking down a wide variety of social legislation and menacing the nation’s liberals. In 1929, there was no indication that any political party would ever threaten its dominance. Republicans had moved away from their liberal wing in favor of pro-business leaders such as Warren Harding, Calvin Coolidge, and Andrew Mellon as Treasury Secretary. Democrats had lost three straight presidential elections and had suffered through arguably the most chaotic convention in American history five years before.
But by 1935, the Court had overstepped. It had begun to strike down New Deal laws with the same fervor that it rejected earlier wage and hour regulations. Instead of acquiescing, a resurgent Democratic Party fought back. Most Americans are aware of President Franklin Roosevelt’s controversial court-packing plan. But the president-centered interpretation of this response neglects the nationwide outrage over the Supreme Court’s actions. According to historian George Brown Tindall, forms of court-packing before Roosevelt’s proposal was announced were discussed in 1936 even in the South. These discussions eventually pushed the Court to moderate its approach and accept many facets of the New Deal.
In 2021, the relative weakness of the Democratic Party is a strong consideration for the Court. The Democratic Party as currently constituted may not be able to pass a moderate agenda. It seems unable to break a number of impasses on Biden’s Build Back Better agenda. Joe Manchin and Kyrstin Sinema are unwilling to support even the most modest of tax increases, let alone structural reforms to the nation’s political system. There is no hope that a 50–50 Senate would change the Court in any meaningful way.
But the Senate will not stay locked at 50–50 forever. While its current political fortunes look dim, the Democratic Party will once again hold significant power. The next time it has a trifecta, there is a decent chance that the margins will be large enough to stifle the objections of whatever analog to Manchin and Sinema might be in the Senate at that time. A wildly overreaching Court may then be ripe for reform, and that possibility for reform is something that any justices interested in the institution’s legacy may want to consider as they decide the next term’s cases.
I don’t think the Supreme Court has much to fear over court-packing. The Biden committee on judicial reform was largely institutionalist and about keeping the status quo. Even if Court-packing was really big, there is no way Manchin or Sinema would break the filibuster for it.
I suspect Roe is dead based on the Gorsuch opinion on SB8. This is despite the fact that 55 percent of Americans are allegedly against overturning Roe. I think that the cult of savvy has let people underestimate the Republican zeal for overturning Roe and possibly banning abortion nation wide for years. Republicans and Republican politicians mean this literally and seriously and I think a lot of people are going to be thunderstruck when it happens. People whose current position is that the worst thing in the world is to appear to be a “chicken little” over everything. Appearing concerned or alarmed is just so uncool, you know?
The problem for Democrats especially a lot of elite Democrats is that they are institutionalists and people for whom institutionalism has always worked. There are good and strong arguments for why faith in institutions is necessary for the survival of democracy but too many Democrats (both politicians and base voters) are reacting to the current right-wing radicalism by doubling down on their institutionalism. I can’t tell whether this is because they think it will help institutions survive or a deep form of denial like the “this is fine” dog.
A lot of liberals seem to believe all the stuff they learn in law school and middle school civics classes about the alleged impartial and non-political nature of the courts or Courts.
The question is what will deep blue state do if Roe is overturned and/or the next time the GOP has a trifecta on the Federal level, they outlaw abortion nationwide. Will there be state-wide defiance or will a lot of Democratic politicians just announce that they dislike the decision but the law is the law and “please vote for us and we will reverse this decision as soon as we are able.” I am not sure the last stance is adequate or acceptable. And based on how things are going. I am not sure the GOP will ever give the Democrats a chance to achieve that kind of majority again.
The Constitution has it stands to day is deeply countermajoritarian. Sometimes this is good but more and more it is just a tool of anti-democratic conservative reactionaries and corporate business interests in preventing any kind of popular welfare-state from developing. In a sane political system, Manchin and Sinema would be harmless cranks. In our system, they are effectively co-Presidents/possibly more powerful than the President. And yet lots of people refuse to believe that there is something wrong about that. Either because it benefits them and their goals and/or they swallowed too much kool-aid in middle school civics classes.Report
What we’ve seen is how authoritarians corrupt and politicize every institution, turning every organ of the state, from SCOTUS to the USPS to the military to the judiciary into an arm of the party.
This is why complacent claims about a Democratic backlash are absurd. Once the Republicans have a trifecta, they will be insulated from the popular vote and have no barriers to doing what they want.Report
Worrying about a national ban on abortion doesn’t seem reasonable.
There are 3 pro-choice GOP Senators. To nationally ban abortion would take 53 Senators, if they are willing to end the filibuster, and 63 if they’re not. There will be a lot less motivation to do this after abortion is handed back to the states, and there are Senators who support the filibuster in general.
The Senate is immune to Gerrymandering.Report
Olympia Snowe: “While I vote today to give decisive authority to regulate and potentially criminalize abortion back to the several states, at the urging of multiple advocates from the Republican Party from states who have dedicated their careers to criminalizing abortion, I’m assured by some of them, who have become the governors and attorneys general of those states, that they will not actually use this authority.”Report
Giving power back to the states is very much not a federal ban.
There’s a strong argument that letting these culture war things play out at a state level is a big step towards tolerating multi-culturalism.Report
There’s also a strong argument that the ability to control one’s own body regardless of the state’s druthers is a fundamental right that the Constitution ought to protect, trumping state law preferences, as with other kinds of fundamental rights.
You’re right to predict that there will be no general Federal ban, and to point out that giving power to the states is not a Federal ban. Giving power to the states is what will happen unless we get a surprising ruling from SCOTUS.
This will result in a patchwork of laws, some states not changing very much from where we’re at right now and others restricting rights, and predictably including some states imposing outright bans. There might be a ban in places where the Federal government exercises plenary jurisdiction, like military reservations and the District of Columbia, but that law won’t have any effect in most places.Report
The word “ought” is doing some heavy lifting there. Worse, Roe never did that. Do that and you have abortion on demand for the entire pregnancy. This makes logical sense and matches the rest of our medical ethics. I can’t force you to give me blood, much less live off of your organs.
Roe said this is a fundamental right for a while and then you lose it, i.e. the state gets to step in after X months.
That summation self conflicts.
And having established that this is NOT a fundamental right, that the States can meddle, we’ve just been fighting over how much meddling is appropriate.Report
This response misconstrues what a “fundamental right” is. Fundamental rights are not absolute under all imaginable circumstances, and states are not required to legislate as though it were. Even fundamental rights may be abrogated by state action when the state action is narrowly-tailored to fulfill a compelling state interest. The scheme to analyze that has been around since the U.S. v. Carolene Products case from 1944.
States can and do Constitutionally “meddle” in other kinds of fudamental rights without necessarily violating them. There can be time, place, and manner restrictions on various sorts of speech or other expressive conduct; the state may (and indeed must) establish a uniform way to petition the government for redress of grievances (in the form of rules of civil procedure); we have it from DC v. Heller that while there is an individual right to own at least some kind of firearm this does not preclude reasonable regulation and registration laws. Etc.
The response treats a “fundamental right” as an “absolute right” and while some rights are very very strong at all times, I don’t think there is an absolute right under the U.S. Constitutional system. Even a person’s very life may be taken by the government, consistent with the Constitution, once due process is observed.
Roe doesn’t say that abortion is an absolute right. For instance, there’s room in the text of Roe for a late-term ban. Roe says that abortion is protected by the fundamental right of privacy, and that the state’s interest in regulating and controlling it gradually escalates throughout the course of the pregnancy, such that early on the state’s interests are small compared to the individual’s, and trimester by trimester beyond viability, the state’s interests eventually become powerful enough to restrict the ability of a doctor and patient to mutually elect to perform the procedure. Casey v. Planned Parenthood uses slightly different methodology, searching for when a burden on the ability of patient and doctor becomes “undue,” but gets to a similar place — an burden under Casey is more likely to be found “undue” early in term but more likely to be found appropriate and therefore Constitutional later in term, because Casey doesn’t reject the basic premise that the state’s interest escalates over time.Report
In a world where I can’t be compelled to donate blood for the use of someone else; I find it hard to believe the “state’s interest” could rise so high that it should be able to compel a woman to be subject to her fetus.Report
Rationally, I think you’re right.
But reason may not wind up having a lot to do with it.Report
I have a BUNCH of Republican politicians who would like a word.Report
The pro-life movement insists on their own facts.
It’s a highly emotional issue, their reasoning is highly emotional.Report
Over/under that we end up relitigating the Fugitive Slave Act in new form, due to people travelling across state lines for the purposes of getting an abortion?
The anti-choice folks aren’t going to be satisfied with no abortions JUST in their state.Report
They’re already talking about using the 14th Amendment to define personhood at conception as one of the possible methods for a nationwide ban.Report
The 14th is what should have been used to give woman total autonomy back in Roe. Forcing a women to subject her body to the interests of another is slavery, even if “another” is a fetus.
This ethics is the backbone of our medical ethics. It’s why my kids can’t force me to donate organs to them, nor even blood.Report
SCOTUS’ ongoing pretense of being unable to understand or restrict the mechanism of Texas’ S.B. 8 is a foreboding omen for this prediction coming to pass.Report
I’m pretty willing to bet money that the GOP will at least attempt a nationwide ban as soon as they have a trifecta of the Federal Government again. I’d even bet money that they would nuke the filibuster over it.
I am constantly amazed that people continue to hold the line of “The GOP doesn’t really want to overturn Roe because it means that they would lose a campaign talking point.” How hard is it to wake people up from the cult of savvy? It would be nice if people could get over the desire to appear too cool for school and yawn seen it all before a trillion times before a time known as “too late.” This doesn’t seem to happen thoughReport
Given that the voters who witnessed a violent attempt to overthrow an election are about to reward the guilty party with complete control over all three branches, utterly demolishes any “B-but teh backlash!” arguments.
I will be delighted to be proven wrong, but reason tells me I am right.Report
People don’t want to admit that the cynic venal people no longer control the Republican Party and it’s now a party of true believers and trolls.Report
Given how the Texas law is playing out, you are likely 100% correct.Report
How did those 3 “pro-choice” Senators vote on the confirmation of the anti-choice Justices?
And the moment there are 218/ 51/ 5 votes for a national ban, it will be done.Report
There is more to a person, or even a judge, than their views on abortion.Report
The only metric for being “pro-chice” that matters is the vote.
Everything else is campaign window dressing.
There are 0 pro-choice Republican Senators.Report
> The Senate is immune to Gerrymandering.
Unless the 17th is repealed (which is a right-wing talking point.). Or, more likely, legislatures decide to “audit” senatorial elections.Report
One could argue that the apportionment of Senators by state is, itself, a gerrymander; a creation of what British parliamentary historians call “rotten boroughs” for the upper house of the legislature on a grand scale.
I don’t think that’s what the Framers were thinking they were doing. But if it were, the result today looks like what intending to pursue that result would likely have been.Report
In the immediate future, thirty percent of the population is going to control seventy percent of the Senate. This thirty percent is going to be really out of ideological step with the seventy percent living in high population states and urban areas.Report
I am deeply skeptical about multi decade predictions of this nature. It assumes the parties and population trends will remain the same.
Just for starters, Trump will likely die in that amount of time and with him his cult of personality.Report
FDR’s court-packing plan hastened the end of the New Deal; liberal Democrats in the North lost their seats in the 1938 mid-terms (while FDR unsuccessfully campaigned against Southern Democrats), giving conservative Democrats and Republicans effective control of the legislature.
At the same time, FDR was able to nominate (judicial restraint) conservatives to the Bench (Frankfurter, Reed, Jackson, and also Stone as Chief Justice). I’m skeptical that today’s Democrats would push for judicial restraint nominees to the Court or anything that would weaken the Court.Report
What’s worth noting is that FDR’s court-packing plan was popular — until the Court backed down, and FDR did not.
While the quick history version is “FDR tried to pack the Courts and he suffered from it”, the actual version is more akin to “Don’t overplay your hand”.
Had the Court remained fully obstinate, FDR likely would have succeeded quite handily. However, by backing down and making obvious overtures, FDR continued to use the concept as a cudgel, which eventually led to the backlash.
The lesson to take from that is more that the Courts really are political and always have been, and they ignore this fact at their own peril. They are insulted from public whims to a large degree, but pretending they are immune is another thing entirely.
It behooves them to think long-term and to pay careful attention to long-term public sentiment, and that bold moves and significant changes in precedent should not come too often — and certainly not without proper ground work and a legalistic consistency they can point to.
For two centuries now they’ve mostly avoided the appearance of “We’ve elected a new Court, so all your laws are gonna change” in favor of “We’re slow, steady professionally tackling difficult issues with impartiality [even when we’re not]”Report
JS, you’ve just condensed my entire SCOTUS ouevre on these pages into the final three paragraphs of your comment. I mean, I’ve written tens of thousands of words about SCOTUS here and you just… said it.
(Good job.)Report
Gorsuch just penned an impassioned 14 page dissent because the Supreme Court refused to block a vaccine mandate for healthcare workers.
Meanwhile, I am in Singapore and the COVID requirements and protocols here make Americans look like toddlers in a temper tantrum.
The Supreme Court also looks like it is poised to gut the establishment clause and require states pay for religious educationReport
Is that admiration of Singaporean government?Report
Yeah I just read it. He compared the vaccine refusniks to the Jehovah’s Witnesses in the Pledge of Allegiance cases. Which is bonkers, and which is going to look really weird if they reverse in Dobbs.Report
I think you are discounting the role of FDR’s own party (VP J Nance Garner and other prominent Dems) who were always dead set against court packing as it consolidated even greater power within the executive branch. Their resolute objection always struck me as separate to the New Deal policies that were deemed unconstitutional by the court. Personally, I thought their actions were heroic considering the consequences they faced for opposing FDR.Report
Facing someone who is very popular does not necessarily make one heroic. It could just make someone anti-democratic and oligarichal. Nance was a conservative Democrat that was hoisted upon F.D.R. and he was always antagonistic to the New Deal. Same with most of the other conservative Democrats. They went along with the bare minimum if they went along at all.Report
If Garner were anti-democratic or an oligarch, what would that make FDR?
The guy essentially sacrificed his career because of that showdown. It was a Pyrrhic victory. As I said, I personally found it heroic. You’re entitled to your own sentiment.Report
This seems to go part and parcel with the whole “institutions failing” thing.
Let’s say that the law says X. Something that is not quite X gets applied by the executive and stayed enforced for a while. Eventually, someone goes to the SCotUS and says “this law should do X!”
Sometimes the court says “you know what? We read the law and you’re right.”
Then there might be a handful of things that follow that include everything from the way the law is enforced changing to nothing at all changing.
Sometimes the court says “well, you have to understand…” and then we’ve established that something not quite X meets the suggestion of X.
You’d think that this would be a great opportunity for Congress to write a clarification law. But how often does *THAT* happen?
I submit: if it happened more often, we wouldn’t be in this pickle.Report
Based on oral argument in the Mississippi case and the SR8 ruling, Roberts seems to grasp this but he has lost control of the court. The right-wing has finally managed to largely get its arch-right wing majority. Gorsuch and Thomas might make the random idiosyncratic decision based on their weirdo textualism but there is a solid 5 vote majority that is willing to overturn Roe. I could be wrong and there could be some heroic backdeal negotiations but it seems that that current GOP does not mind apartheid rule of a minority.Report
Reality alteration bubbles.
It will be popular. No one will miss it, or if they do they already vote Blue.Report
The court packing plan was not popular. It was unveiled by FDR on Feb. 5, 1938, and Gallup polling showed that it never had majority support:
“Over the entire period, support averaged about 39%. Opposition to Court packing ranged from a low of 41% on 24 March to a high of 49% on 3 March. On average, about 46% of each sample indicated opposition to President Roosevelt’s proposed legislation. And it is clear that, after a surge from an early push by FDR, the public support for restructuring the Court rapidly melted.”
The Senate voted against the court packing scheme 70 to 20, amid pubic backlash from Democratic elites and the American Bar Association.Report
Not to be naive here, but I think / hope that Justices are more concerned with good rulings than either an agenda or their reputation. This article doesn’t seem to entertain that idea. If the Court’s reputation should be a factor at all, it would be in weighing the priority given to stare decisis.Report
lolReport
You don’t think any of them do?Report
I know they don’t, and I didn’t know there were people who paid attention who still believed they did.Report
Now that’s actually kinda funny.Report
“I like beer!”Report
You’re adorable.Report
I think it’s these pants.Report
But by 1935, the Court had overstepped.
In which cases? There’s no question that Roosevelt and the Congressional Democrats overstepped—large portions of the New Deal very clearly lacked any legitimate basis in Congress’s Article I, Section 8 powers, and the Court was right to strike down at least some of them. So in which cases, in particular, did the Court strike down constitutionally valid law?Report
If justices could be impeached for having perjured themselves about Roe in their confirmation hearings (e.g. Thomas claiming he’d never discussed it with anyone, Kavanaugh saying “settled law”), they still wouldn’t be afraid unless the Democrats had a two-thirds majority.Report
I get it. Really, I do. The very very last thing we want is a sitting judge perjuring themselves to get on the Supreme Court; that’s just about the opposite of rule of law and respect for the judicial system. The idea that Clarence Thomas had never discussed abortion with anyone before his Supreme Court confirmation hearings was ridiculous on its face. Everyone has discussed abortion, one of the centerpiece disputes in American public life. With friends. With family. With clergy. Sometimes with randos at the Metro stop.
But. Judges are also supposed to be open-minded, to be ready to entertain (non-frivolous) arguments brought before them. That necessarily means that while judges may well have opinions and particular understandings about the law, they are also persuadable. If we start impeaching judges for being persuaded by the arguments before them it creates a lot of very unhealthy incentives that we also don’t want to introduce anywhere into the system, much less at SCOTUS.
So on a different issue, maybe from a different Justice, would you ever believe, “The argument made in the case, with those facts and with the issue presented in that posture, changed my mind?” Wouldn’t that be both an easy thing for the impeached judge to say, as well as something that basically couldn’t possibly be refuted?Report
Drawing on my experience from dozens of seconds of Googling just now, “settled law” apparently is a term of art and doesn’t mean “I would not vote to overturn this” but rather more like “I would not vote to overturn this merely because I believe it’s wrongly decided, but would take into account that it’s been the law of the land for a long time.” So even leaving aside Burt’s point, his voting to overturn Roe wouldn’t by itself conflict with that statement. (And was it even something he said under oath? I only found articles like this one that just say he had said it to Collins). (edit — oh, looks like he did, apparently i needed to invest another dozen seconds of research)Report
Oh, just replied but it must’ve ended up in spam filter due to the link and my compulsive re-editing…Report
releasedReport
“Settled law” means nothing less than the Supreme Court can over turn it. Every other court has their marching orders.
Thomas said he’d never discussed the case; In context that presumably means “professionally”.
Now with Barrett Congress did a better job at reviewing and parsing those terms and asked her if she considered it “super settled” (probably not the term she used) and she answered that Roe had been contested from the moment it was created so society has not really settled the issue (she/they did a better job at describing that than I am).Report