The Fickle Nature of Supreme Court Rule

James Earle Fraser’s statue The Authority of Law, which sits on the west side of the United States Supreme Court building, on the south side of the main entrance stairs. This image or media was taken or created by Matt H. Wade via Wikimedia Commons

Democrats once again are asking themselves what to do about the Supreme Court. Last week’s ruling overturning Roe v. Wade has set off a firestorm of controversy. Democrats have been pushed to make all sorts of Court reforms to match the national anger at the loss of a constitutional right. They have discussed packing the Court, instituting term limits, or otherwise passing reforms that will dilute its power as the third branch of government.

Republicans, on the other hand, are the most vocal supporters for the continued power and influence of the Court. They have dropped any Warren Court-era criticisms over judicial activism. Instead, they see the Court as the future of their political agenda and its decisions as giving them free rein over the American political system. As Charles C.W. Cooke noted in National Review, the Court must be respected for simply interpreting the law: “The Supreme Court is a court, and its job is to uphold the law — whether statutory or constitutional — as it actually exists… If a sufficient majority of Americans no longer like the law, they can use their democratic power to change its text. But, until they do so, that text will remain what it is, and the Court will be obliged to interpret it without fear, favor, contrivance, or reference to anything beyond its written terms.”

Supreme Court rule is preferable to political actors for a number of reasons. It has the potential to enshrine minority rule and preferences, a difficult achievement in a majoritarian political system such as ours. The Court makes decisions by fiat. These decisions are implemented immediately and can change the lives of every American overnight. Methods of redress for the Court are inherently limited. Constitutional amendments are almost impossible at any time in the American political system, especially when the parties are divided and a contentious issue is at stake. The other obvious remedy, impeachment, has only been seriously tried once, and the precedent from that occurrence is that the tool should only be used during extraordinary circumstances, not from egregious decisions made from the bench.

On their face, these decisions also appear more permanent than those taken by Congress or the president. Executive actions can be reversed with the stroke of a pen. A new Congress could easily pass a law reversing the decision of an earlier Congress. Barring a constitutional amendment, the vast majority of laws are seen as reflections of the will of the voters at the moment when they are passed, a will that can change as circumstances change. Supreme Court justices, on the other hand, are supposed to be guided by the principles of stare decisis and a close reading of the text and effects of the Constitution. With lifetime tenure and all the trappings of ministerial leaders, they are not supposed to be beholden to the whims of partisanship or public opinion.

But this permanence is an illusion. All of the factors that make the Court into such a powerful political weapon make it dangerous for political operatives as well. Like any other weapon, it can easily fall into the hands of opponents. Those opponents can wield the Court more effectively and can undue all of the achievements of previous Courts, often without impunity.

For instance, the seventy years following the Civil War saw several of the most conservative Supreme Courts in American history. The Court devastated civil rights protections, gutted the Reconstruction amendments, and greatly curbed efforts by Congress to regulate the economy. In the 1930s, these actions went so far as to provoke President Franklin Roosevelt to reshape the Court through legislation. As Fred Rodell wrote in a 1955 history of the Court, the plan was an improvement on constitutional amendments and other restrictions: it was “so simple that it seemed to many diabolically clever — no amending of the Constitution, no curbing of the Court’s power, merely (as FDR put it) the ‘infusion of new blood’ into the otherwise untouched federal judiciary.”

Fearing this encroachment, the Court responded by simply turning back on nearly all of their previous precedents. The switch was abrupt (Fred Rodell called it a “flat contradiction” of an earlier case) and nearly as political as all of the earlier, conservative decisions the Court had made. Overnight, the Supreme Court went from a tool to destroy the New Deal into one that would uphold most of its decisions. Just as the Court can support one political side, it can turn to the other side in a matter of days.

Democrats are wise to challenge the current power of the Supreme Court in American society. Without reform, the Supreme Court is likely to enshrine conservative ideas for the next generation. But conservatives need to also be aware of the finite nature of their newfound power. Roe was destroyed as a ruling doctrine last week with the stroke of a pen. It could be revived and expanded just as quickly.