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. Continue reading “Does the Roberts Court’s view of executive and legislative power present an alternative case for court reform?”