The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In the aftermath of the highly controversial confirmation of Brett Kavanaugh and the establishment of a seemingly stable conservative majority on the Supreme Court, many commentators argue that the Court may soon suffer a crisis of legitimacy. Some liberal Democrats are considering drastic action to regain control of the Court or curb its power, such as "court-packing" or impeaching Kavanaugh. On Twitter, former Obama administration attorney general Eric Holder warns that "[w]ith the confirmation of Kavanaugh and the process which led to it, (and the treatment of Merrick Garland), the legitimacy of the Supreme Court can justifiably be questioned" (though he has not, so far, endorsed court-packing or other similar policies).
Is the Court really about to suffer a legitimacy crisis? Predictions to that effect may well be overblown, as they often have been in the past. But the notion is worth taking seriously nonetheless. The deep anger of much of the left could lead to a stronger assault on the Court than has occurred in a long time.
Before considering whether the Court's legitimacy is seriously threatened, it is worth asking what exactly we mean by that. As I use the term here, a crisis of legitimacy does not happen merely because the Court makes rulings that many people hate. Such decisions are issued almost every year. Nor will it occur merely because many believe the justices' rulings are influenced by politics (though such beliefs might help contribute to a crisis). Rather, the Court's legitimacy undergoes serious challenge only when a strong political movement seeks to curtail the Court's authority or take drastic measures to subordinate it to the party in power. Refusing to obey court decisions (as some nineteenth century presidents threatened to do) is an example of the first. "Court-packing" (as famously attempted by Franklin D. Roosevelt in 1937) is an example of the second.
I. Why the Danger May Well Be Overblown.
Is anything of the sort likely to happen in the next few years? It could well be that the answer is "no." The Court's legitimacy has survived many previous events that critics claimed were likely to seriously damage it. Many on the left thought the Court's standing would be severely undermined by such decisions as Bush v. Gore and Citizens United. Yet no crisis of legitimacy occurred, or even any significant long-term decline in the Court's popularity. The same goes for conservative complaints about such decisions as the school prayer cases, Roe v. Wade, and the 2015 same-sex marriage decision. The Court's 2005 ruling in Kelo v. City of New London was its most widely hated decision in many decades, with over 80% of the public opposed to it. Yet, once again, there was little if any long-term damage to the Court's status.
One possible reason for this pattern is that, despite their flaws, the justices still look better than the president and Congress, whose approval ratings are usually substantially lower than those of the Supreme Court. An additional factor is that most voters are "rationally ignorant" about political and legal issues, and therefore pay little attention to the doings of government generally, and the Supreme Court in particular. A recent C-SPAN poll, for example, found that 52% of likely voters cannot name a single Supreme Court justice.
People who pay little attention to the Court are less likely to develop deep anger against its rulings, and demand drastic action to curb its power. Within a few years, most ordinary voters may have either forgotten about Merrick Garland and the accusations against Kavanaugh, or at least no longer care much about them relative to the many other issues competing for public attention.
Conservative commentator David French highlights another reason why the Court's legitimacy might avoid serious challenge: over the last century, a strong norm of obedience to judicial decisions has taken hold. Even a president as contemptuous of norms as Donald Trump has—so far—stopped short of openly challenging this one.
II. Why We Should Still Take the Threat Seriously.
Nonetheless, there are good reasons to take the looming potential threat to the Court's legitimacy seriously. The most significant is that left-liberal activists are indeed seriously considering drastic measures that were previously considered taboo, most notably court-packing. Such ideas were gaining some ground on the left even before the Kavanaugh confirmation. But they have become more widespread since then. Many liberals genuinely believe that court-packing is both the only way for the left to regain control of the Court and entirely justified retaliation for the misdeeds of the right, such as Senate Republicans' refusal to hold hearings on Barack Obama's nomination of Merrick Garland in 2016, and—now—the confirmation of Kavanaugh in the face of accusations of sexual assault. I don't fully buy such arguments myself, and continue to oppose court-packing, just as I did when it was previously proposed by leading conservatives. But, politically speaking, what matters is not whether court-packing is justified in some objective sense, but whether enough influential liberal Democrats believe it to be so. At least at the moment, such ideas are gaining ground. And they might well continue to do so, especially if the new conservative majority on the Court makes high-profile decisions that progressives hate.
What is true of court-packing could also become true of other aggressive measures against the Court, such as curbing its jurisdiction, impeaching justices (particularly Kavanaugh), and so on. Indeed, many of these tactics were in fact used back in the nineteenth century, sometimes successfully. If court-packing (or other similar policies) become part of the standard agenda of one of the two major political parties, voters loyal to that party are likely to support it, even if they were not initially enthusiastic about such plans, or particularly hostile to the Supreme Court. In our age of growing polarization and partisan hatred, many partisans will support almost anything that is advocated by party leaders and seems like a good way to strike a blow against the opposing party. Thus, proposals like court-packing could well enter the mainstream, even if initially they are only espoused by a relatively small group of activists.
In 1937, FDR's court-packing plan failed in large part because of opposition from many of his fellow Democrats, such as Montana Senator Burton Wheeler. We cannot necessarily count on such internal divisions today, in a time when the parties are more unified and more polarized than was the case in the late 1930s. Moreover, though FDR failed to actually pack the court, many believe that the mere threat of court-packing forced the justices to change course and abandon precedents that cut against the president's New Deal agenda. Experts disagree about whether the Court's shift really was influenced by the court-packing threat or not. But the widespread perception that FDR's plan actually "worked" (even if it really didn't) might further incentivize modern politicians to repeat the experiment.
The norm of presidential obedience to judicial decisions, like the norm against court-packing, is not an inevitable fixture of our political landscape. It too could potentially erode. Consider the following admittedly speculative scenario:
In 2022, President Elizabeth Warren, backed by a Democratic-controlled Congress, passes far-reaching campaign finance reform legislation that progressives consider to be an important part of their agenda of curbing the inordinate political power of the wealthy. A 5-4 Supreme Court decision (with the justices divided along ideological lines) strikes down key parts of the legislation.
President Warren, in turn, announces that she will not obey the ruling, and will continue to enforce the law. She argues that this is proper because two of the five justices in the majority are "illegitimate": Neil Gorsuch because he occupies a seat that was "stolen" from Merrick Garland, and Kavanaugh because he committed perjury during his confirmation hearings, when he denied the sexual assault accusation (and perhaps on other matters as well). The president could buttress her position by citing (selectively chosen) quotations from widely admired nineteenth century presidents (including Abraham Lincoln) arguing that the president need not always obey court decisions. She could also rely on similar claims by modern-day "departmentalist" legal scholars, including some staunch conservatives, such as Michael Stokes Paulsen. Only a small minority of legal scholars are thoroughgoing departmentalists. But they are enough to give the president's refusal to obey a controversial decision at least some veneer of intellectual respectability.
Some more moderate Democrats worry that the president is going too far. But most rally to her side, in her struggle against an "illegitimate" Supreme Court that has become a "puppet of the rich and powerful." A high-stakes constitutional crisis ensues.
I don't know if a near-future Democratic president would actually defy the Supreme Court in this way. If he or she did, I don't know if the defiance would be a political success. It's possible it would generate a big enough backlash to force the president to retreat. The same points apply to possible court-packing schemes. They too might never be seriously attempted. And if they are attempted, they might crash and burn.
I do believe, however, that both court-packing and (more speculatively) refusal to obey judicial rulings, are no longer unthinkable to anything like the extent they might have been a few years ago. And if either is attempted and the party that does so is politically successful (or even just avoids a devastating backlash), then the Supreme Court's position will be seriously weakened. And the power of judicial review would be severely undermined. If one party successfully pushes through a court-packing plan, refuses to obey a court decision, or takes other similar actions, the other party is likely to do the same thing, whenever they get the opportunity to advance their own agenda by doing so.
This spiral may well be a feature rather than a bug, if you agree with various legal commentators (on both right and left) who believe the nation will be better off with much weaker judicial review, or even with its eventual elimination. But if, like me, you believe that judicial review is a valuable institution that we should try to preserve, now is a good time to start taking this issue seriously. I would add that simply washing one's hands of the issue by claiming that any problem is all the fault of the side of the political spectrum opposite to your own, is not a good way to take it seriously. Even if it is indeed "their" fault and not "ours," the danger is still there.
I don't have any brilliant solution to the problem, though I suggested one tentative idea here. Hopefully, others will have better insights.