A guest post by Lawrence Friedman
In his recent essay, The cravenness of Democratic “Court reform” proposals, Jordan Singer responds to the left-leaning critics of the Supreme Court term just ended who have lamented the results in cases on choice, immigration and employment discrimination—not because the Court, led by Chief Justice John Roberts, failed to reach the results these critics support, but because it did. Democratic pollster Mark Mellman, for example, concludes that Roberts, “by refusing to inflame passions further,” may have stemmed “the tide and accomplish[ed] the coveted goal of his GOP critics—preserving the Court’s current conservative majority.” And law professors Kent Greenfield and Adam Winkler prophecy “the moderation shown by Roberts has all but guaranteed a conservative Supreme Court for a generation.”
As Singer explains, these critiques reveal a Democratic goal since the failed Merrick Garland nomination in 2016: “to punish Mitch McConnell and Donald Trump by radically restructuring the Court itself.” The restructuring plans have taken many forms, from imposing term limits on Supreme Court justices to expanding the number of justices who sit on the high court. These reform efforts turn on the belief that, since McConnell and the Republicans refused even to consider Garland, the Court’s legitimacy has suffered—with decisionmaking in controversial cases compounding the problem. The argument for Court reform falters, however, in the face of outcomes that tend to match the views of a majority of Americans – as they did this term in cases concerning choice, immigration and employment discrimination, in all of which Chief Justice Roberts either wrote or sided with the majority.
Professing concerns about the legitimacy of the Court’s decisonmaking is a broad brush with which to paint, and such concerns tend to be overblown: an institution that has survived decisions in cases like Brown v. Board of Education, Bush v. Gore, and District of Columbia v. Heller is not likely to be cast aside by the American people any time soon. Still, there is a tendency among the Court’s current membership that should be cause for genuine concern: the near-abandonment in cases involving the structural constitution and the separation of powers of any sense of judicial restraint.
To illustrate, consider the point that Greenfield and Winkler make in their piece, Did John Roberts doom Supreme Court reform with his decisions? They liken Chief Justice Roberts’s votes in this term’s cases on choice, immigration, and employment discrimination to the pragmatic change of Justice Owen Roberts (no relation) almost a century ago, when his vote in West Coast Hotel Co. v. Parrish, the “switch in time that saved nine,” resulted in the Court’s validation of the foundations of the modern regulatory state.
Chief Justice Roberts, to borrow a phrase from Justice Elena Kagan’s dissent in Seila Law v. Consumer Financial Protection Bureau, is a piker by comparison. Here’s why: the 1937 vote by the earlier Justice Roberts paved the way for Congress to legislate in the national interest pursuant to the commerce and necessary and proper clauses, commensurate with the scale of the domestic and international concerns afflicting the American economy. More to the point, his vote enabled Congress to regulate with a relatively free hand and signaled the Court’s retreat from its decades-long efforts to police Congress through a narrow reading of Congress’s Article I authority.
Regardless of the practical or political consequences that followed Justice Owen Roberts’s reconsideration of congressional authority, the result was democracy enhancing in the sense that, afterward, the people, through their representatives in Congress, would be accountable for national policies, and not five unelected judges ill-equipped to second-guess legislative decisionmaking about how the economy should be regulated. The new course marked a significant change in the relationship between members of Congress and their constituents, and between Congress and the courts.
To be sure, the decisions this term in which Chief Justice Roberts played a critical role can also regarded as democracy enhancing. For example, requiring executive decision making to adhere to procedural requirements, as in the DACA decision, ensures that administrative agencies adhere to the rules a democratically accountable Congress sets out. But the outcomes in the DACA case, and in the choice case, Russo v. June Medical Services, are marginal as compared to the change in judicial direction that occurred in 1937. As I’ve explained elsewhere, though these decisions may please the political left, they represent way stations rather than fundamental doctrinal shifts, as in West Coast Hotel. So long as Donald Trump occupies the White House, there is likely to be more litigation about the validity of his immigration policies, while the decision in Russo, striking down an abortion regulation nearly identical to one the Court rejected just a few years ago, will not deter further efforts to overturn Roe v. Wade.
These decisions, moreover, stand in contrast to Seila Law, in which the Court, with Chief Justice Roberts writing for the majority, struck down for-cause protection for the head of the Consumer Financial Protection Bureau because, Roberts reasoned, it interfered with the President’s power to remove executive officers. The decision adds another brick to the questionable edifice known as the unitary executive. As Justice Kagan explained in her dissenting opinion, neither constitutional text nor history supports such an understanding of the executive branch. Seila Law illustrates how judicial enforcement of this understanding tends to be democracy-restricting and innovation-deterring to the extent it positions judges as the final arbiters of Congress’s ability to regulate various aspects of the economy. Perhaps needless to say, history shows this is not a role for which judges are particularly well suited.
In the end, it is structural decisions like Seila Law, and not the individual rights decisions on which the political left focuses, that seem more likely in the long run to cause the Court trouble. Whether that trouble warrants reforming the Court’s structure and makeup is another question. A new president and some personnel changes on the Court might serve to keep in check any further expansion of the unitary executive theory and like beliefs about Congress’s authority to perform its constitutionally assigned functions. Failing that, it may be that it is not just Democrats and progressives proposing reforms to the Court, for the larger the role the Court plays in policing the work of the political branches – and particularly Congress – the more likely any frustration caused by such intervention will not be limited to the political left.
The Interdependent Third Branch 