Biden and the Court

On April 9th, 2021, President Joseph Biden ordered that a commission be established to study the need for structural reform of the United States Supreme Court, in particular with respect to the actual number of justices on the Court, with respect to term limits and with respect to the Court’s unchecked ability to declare acts of Congress unconstitutional.
There have long been reasons to be unhappy with the Supreme Court. It has consistently ruled in favor of the powerful with its history of decisions designed to trample on the rights of minority populations and working people: all very consistent with the view of the lawyer Thrasymachus in Plato’s Republic: “everywhere there is one principle of justice, that is the interest of the stronger.”
By way of overview, there is John Marshall’s decision in Johnson v. McIntosh (1823) where he declared that Native Americans had no real rights and were simply wards of the state. For this, the Marshall Court resorted to a papal bull (yes, a pronouncement by the Pope in Rome) to justify its decision: in Romanus Pontifex (1452), Pope Nicholas V ordered the Portuguese King Alfonso V to “capture, vanquish, and subdue the Saracens, pagans, and other enemies of Christ,” to “put them into perpetual slavery,” and “to take all their possessions and property.” This is the basis of the Discovery Doctrine which the US inherited from England and which the Marshall Court made part of American law; it was even invoked recently in an opinion, written by RBG no less, in a 2005 ruling against the Iroquois, City of Sherrill v. Oneida Indian Nation of New York.
A most catastrophic Supreme Court ruling was the Dred Scott Decision of 1857. This decision dictated that slavery had to be legal in all states and territories (the right to private property and all that). Impressed with the Court’s authority, James Buchanan (considered the worst president ever until recently) naively thought that this decision settled the burning issue of slavery once and for all – instead it led quickly to the Civil War.
Reconstruction and the 14th Amendment were quickly gutted by post bellum decisions in the Slaughter House Cases (1873) and the Civil Rights Cases (1883) by, among other things, weakening the power of the Equal Protection Clause to protect the civil rights of African Americans. Workers’ rights were gravely impaired with In Re Debs (1894) which authorized using Federal Troops to break strikes. And then in 1896, Plessy v. Ferguson upheld segregation in schools and other public places with the tag “separate but equal.” In 1905, the 5-4 Court ruled against the state of New York in one of its more controversial decisions, Lochner v. New York; appealing to laissez-faire economics this time, the majority ruled that the state did not have the authority to limit bakery workers hours to 10 hours a day, 60 hours a week even if the goal was to protect the workers’ health and that of the public.
The story of the case Federal Baseball Club v. National League (1922) would be ludicrous were it not so serious. In the decision written by celebrity jurist Oliver Wendell Holmes Jr., it was declared, against all logic, that Major League Baseball was not a business and so not subject to anti-trust laws – thus validating the Reserve Clause which made professional ballplayers serfs and the Lords of Baseball feudal barons. The situation continued until the courageous St Louis centerfielder Curt Flood’s case reached the Supreme Court in 1972; naturally the Court, true to its code, ruled against Flood and for Major League Baseball (again serving the interests of the powerful as per Thrasymachus), but the case did force open the door for player-owner negotiations and the end of the Reserve Clause. BTW, it was Justice Holmes who famously said that freedom of speech did not give one the right to cry “fire” in a crowded theater.
The 6-3 decision in Korematsu v. United States (1944) upheld the government’s internment of American citizens of Japanese descent during WW II. From the beginning it was roundly denounced as racist – nothing of the sort was directed against white Americans who supported the vocal pro-Nazi German American Bund. Indeed Columbia University Law Professor Jamal Greene ranked Korematsu among the four “worst-case” Supreme Court rulings in a 2011 Harvard Law Review article (along with Dred Scott, Plessy and the Lochner labor-law case).
Only the Warren Court in the 1950s and 1960s had a consistent constructive philosophy on issues like Civil Rights; this Court both made landmark decisions like the unanimous Brown v. Board of Education (1954) and it also made follow-up decisions to uphold legislation such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965. On the negative side, this Court set the stage for overt judicial activism on the part of a conservative Court majority and a spate of dangerous 5-4 decisions followed as the Court shifted right.
Fast forwarding to the 21st Century and the Roberts Court, in 2008, there was the disastrous 5-4 District of Columbia v. Heller decision which has fueled mass shootings and galvanized the paranoid “militia movement.” Here Justice Scalia resorted to Jesuitical trickery in overturning the long-standing interpretation of the 2nd Amendment. In the name of “originalism,” claiming to know what James Madison really meant, Scalia rewrote the centuries old reading of the Amendment and stipulated that the phrase “A well regulated Militia, being necessary to the security of a free State” was meaningless – thus paradoxically making “originalism” a cover for a radical interpretation of the text and creating new “2nd Amendment rights” out of thin air. The decision has made the US and its gun violence a disgrace among nations.
The Roberts Court has continued this tradition of decisions that short-circuit American life and assault the citizenry. For example, the Court has dramatically increased the role and power of Big Money in American elections while limiting voting rights of citizens. The decision in the Citizens United case (2010) abrogated the McCain-Feingold election reform legislation of 2002 and made Big Money supreme in matters electoral – in the process it overturned two rulings of the preceding Rehnquist Court. (More recently, the Court again overturned its own precedent in yet another 5-4 decision and dealt labor unions a severe financial blow in Janus v. AFSCME (2018).) In Shelby County v. Holder (2013) the Roberts Court, showing no respect for Congress, vitiated the Voting Rights Act of 1965, thus unleashing a wave of measures in state legislatures to restrict voting, a process which has taken on even greater momentum in the wake of 2020 Democratic victories in Georgia and other Red states. The net effect of these decisions has been a disaster for American Democracy. To make matters worse, from the oral arguments, it looks as though this Court will maintain its indefensible record on voting rights in the case currently before it concerning ballot collection in Arizona.
Indeed today the Court presents a structural problem for American democracy as nine unelected political, ideological officials with life-time appointments reign over the legislative and executive branches of government – not only are they not elected to the Court, none of today’s nine sitting justices has even ever held elective public office! The power that has devolved on the Supreme Court was not anticipated by the framers of the Constitution. For example, in his essay Federalist 78, Alexander Hamilton dismissed worry that the Court could ever become even nearly as powerful as the two other branches of government: as this master of metonymy put it, the Court would have “no influence over either the sword or the purse.” In fact, this position is much that of Montesquieu, the Enlightenment philosopher who formulated the theory of balance of power among three branches of government.
The blatantly partisan stunt of then Senate Majority Leader Mitch McConnell which denied Barack Obama a supreme court nomination has made the Court more political than ever. All has been made worse with the theatrical, rushed nomination and ratification of Amy Coney Barrett hours before the 2020 election. It is this overtly political tampering with the make-up of the Court that has made the composition of the Court a legitimate issue for Biden.
Ironically, the person most discomfited by the new 6-3 conservative majority is Chief Justice Roberts who can no longer serve as a swing vote to mitigate the conservative majority’s overreaching – Exhibit A: Roberts voted with the minority in the recent (Apr. 9, 2021) 5-4 opinion which overruled the Ninth Circuit Court of Appeals to allow religious gatherings in California to violate state pandemic social distancing restrictions. This is not the first time this Court, on an ever more slippery slope, has showed especial consideration for religious institutions – that was the Burwell v. Hobby Lobby decision (2014). The Court has indeed changed with time; justices once proclaimed that freedom of speech did not give one the right to shout “fire” in a crowded theater lest you endanger your fellow citizens; however, the right to endanger your fellow citizens with potential super spreader events is now guaranteed by freedom of religion!
Mathematically speaking, the fact that so many of these controversial Court decisions for years now have been 5-4 implies that it is ideology and not jurisprudence that is the driving force behind them: if the justices were truly looking at the letter and spirit of existing law and precedent, the majorities would be much more random and some of them would be unanimous.
Getting back to Biden’s commission, it does have some history on its side and there is the fact that Thrasymachus’ simplistic view of justice was rebutted by Socrates himself.
The number of justices is not given in the Constitution, rather it is a matter for Congress. Four times the Congress has enlarged the number of justices on the Court to keep an alignment with the number of Circuit Courts – in 1789 setting it a 6 at the outset, in 1807 making the number 7, in 1837 making it 9 and in 1863 making it 10; it was reduced to 7 in 1866 in order to prevent Andrew Johnson from making appointments to the Court but put back to 9 in 1869 when U.S. Grant became President. Today there are 13 circuits which makes for a nice target number for the commission. But this would be “packing the court” and will probably prove a non-starter, alas.
Membership on the Supreme Court has always been a life-time appointment which is not inconsistent with Article III of the Constitution which proclaims that federal judges shall “hold their office during good behavior.” Term limits of some kind (18 years per the newly proposed Supreme Court Term Limits Act) would introduce a random element that could rejuvenate the Court with more frequent turnover. It would also counter the Republican strategy of appointing unusually young right-wing jurists to the Court. “Term Limits” has a nice ring to it and could conceivably attract support; the Supreme Court Term Limits bill tries to finesse Article III by having justices whose tenure expires on the Supreme Court be reassigned to a Federal Circuit court; but any change of this kind could well require an Amendment to the Constitution itself, no easy task.
Today the Congress can pass no law without starting a lengthy process of judicial review. This is not the case in the UK where a law means what the parliament says it means nor in France where the Conseil Constitutionel is kept weak lest the country become like the US and fall hopelessly into a dreaded “gouvernement des juges.” Judicial review of acts of Congress is not spelled out in the Constitution, but it is mentioned in Hamilton’s Federalist 78 as something needed for a balance of power in government. In any case, the Court ascribed to itself the right to declare an act of Congress unconstitutional in the landmark decision Marbury v. Madison (1803). In logic worthy of the sophists of Plato’s time, John Marshall affirmed that the plaintiff Marbury was right but ruled against him by declaring Section 13 of the Judicial Act of 1789 unconstitutional because it would (according to Marshall) enlarge the authority of the Court beyond that permitted by the Constitution. But the Constitution does not authorize the Court to declare an act of Congress unconstitutional either!
Limiting the Court’s authority to declare legislation unconstitutional would serve at least one important purpose – revivifying the Legislative branch of the government. Today with the Imperial Presidency and activist Courts, Congress has been relegated to an inferior status. Formulating such a restriction would require clever legal argument worthy of Marshall and Scalia; getting it through Congress would need all the skill of Henry Clay and LBJ – and it might even require an amendment to the Constitution which would need someone as persuasive as James Madison, the magician who managed to get ten amendments ratified.