What is the proper remedy for an “illegitimate” Supreme Court?

Progressives take increasingly aggressive aim at the Supreme Court, branding it “illegitimate,” and recommending everything from expanding the number of Justices to ignoring their rulings entirely, but are any of their proposed schemes workable in the real world and what is the best way to proceed when the Court goes astray from your perspective?

In the wake of controversial Supreme Court rulings on everything from abortion to gun rights, with unions and prayer in between, progressives have taken to branding the Court as “illegitimate.”  For example, Senator Elizabeth Warren told ABC’s This Week, “This court has lost legitimacy. They have burned whatever legitimacy they may still have had after their gun decision, after their voting decision, after their union decision. They just took the last of it and set a torch to it with the Roe v. Wade opinion. I believe we need to get some confidence back in our court, and that means we need more justices on the United States Supreme Court.”  The Chair of the Democrat National Committee, Jaime Harrison, said much the same thing, writing on Twitter, “I’m overwhelmed with anger and pain. This illegitimate Supreme Court filled with political extremists just struck a blow to American freedom. These folks won’t just stop at this right. So with everything we got & all that we are – each of us  must end this tyranny on our rights!”  The progressive publication, The Guardian, also concurred when Jill Filipovic declared “It’s time to say it: the US supreme court has become an illegitimate institution.”  In her view, the Court is now merely a “tool of minority rule over the majority, and as part of a far-right ideological and authoritarian takeover that must be snuffed out if we want American democracy to survive.” Ms. Filipovic recommended a similar remedy as Senator Warren, “declare this court illegitimate. Demand its expansion. Abolish the filibuster. Treat this like the emergency it is, and make America a representative democracy.”

It might be easy to dismiss these concerns as partisan hyperventilation, but conservatives have certainly been burned by the Court in the past and made similar, if slightly less inflammatory statements.  This prompts an obvious question:  If the Court is indeed fundamentally illegitimate beyond repair, what can anyone actually do about it?  Senator Warren and Ms. Filipovic, along with other progressives, frequently recommend an expansionary scheme, often known as Court Packing.  The idea is simple in principle.  The number of Justices on the Court is set by Congress.  Congress can add more Justices at any time by passing a law that says precisely that.  They can also remove the requirement for lifetime appointments and effectively implement term limits.  With a Democrat in the Oval Office, Congress can expand the Court and fill the newly created vacancies with progressive jurists, immediately turning a 6-3 conservative majority into a 7-6 progressive edge.  The filibuster, of course, stands in their way and would likely have to be removed or suspended temporarily.

Otherwise, there is nothing preventing Congress from pursuing such a scheme.  At the same time, there is nothing preventing a future Congress from pursuing a competing scheme of their own once they regain the Presidency, one which undoes the other just as easily.  A potentially Republican controlled Congress could react by either packing the court further, or shrinking the Court back to nine and removing the progressive justices based on tenure, meaning the 60-vote threshold set by the filibuster is both the barrier to making it happen and a barrier from preventing it from being promptly undone.  You live by the filibuster, you die by the filibuster.  The timing of anything this massive is also an equally massive issue.  Congress needs to remove the filibuster, pass a new Supreme Court law, and then ultimately seat four new Justices in the middle of an election year when Republicans are expected to take control of the Senate.  The average time to seat a Supreme Court Justice is around three months even forgetting that most of the summer is spent on recess, along with additional time off in the fall for campaigning.  If the new Justices are not seated before a potentially Republican Senate is sworn in, the appointments could be blocked en masse while the Court is cut back to size.  Either way, the end result would be a return to a nine person court with the existing Justices.

Supreme Court Justices can also be impeached, an idea advocated by progressive firebrand, Alexandria Ocasio-Cortez.  She also believes there is a “crisis of legitimacy” and the Court has “dramatically overreached its authority,” telling NBC’s Meet the Press, “If we allow Supreme Court nominees to lie under oath and secure lifetime appointments to the highest court of the land and then issue — without basis, if you read these opinions — rulings that deeply undermine the human civil rights of the majority of Americans, we must see that through.”  “There must be consequences for such a deeply destabilizing action and the hostile takeover of our democratic institutions,” she added.  Unfortunately for Representative Ocasio-Cortez, no Supreme Court Justice has been successfully impeached since 1804 when Samuel Chase was ultimately found innocent in the Senate and allowed to remain in office.  Even if you consider the entire Federal judiciary, the track record on impeachment isn’t encouraging for anyone who believes Clarence Thomas, for example, should be thrown off the court.  All told, 15 judges have been impeached since our Founding, and only 8 actually removed from office.  This is because the impeachment process is the same as for a President:  You need only a majority vote in the House to begin the proceedings, but a super majority, 67 votes, in the Senate. No one reasonably believes 17 Republicans are going to join in this crusade after the Court has achieved what many conservatives have dreamed about for generations.  Perhaps needless to say, Representative Ocasio-Cortez failed to explain how to overcome that barrier, or how a Court could possibly be accused of “dramatically” overreaching its authority when they have only reversed what another court, also composed of nine robed Justices, had implemented.  You live by the court, you die by the court.

Some are pushing more dramatic remedies.  Disgraced television personality Keith Olbermann believes the Court can be dissolved and ignored, “It has become necessary to dissolve the Supreme Court of the United States.   The first step is for a state the ‘court’ has now forced guns upon, to ignore this ruling.  Great. You’re a court? Why and how do think you can enforce your rulings?”  It remains entirely clear how the Court can be dissolved, but it has been ignored in the past, most famously by President Andrew Jackson, who is purported to have said, “John Marshall has made his decision; now let him enforce it” in response to an 1832 ruling regarding Indian sovereignty.  President Jackson proceeded to defy the Court and enact his preferred removal policy against their wishes, setting off the Trail of Tears.  In addition to historical precedent, ignoring or defying the court does enjoy some Constitutional support, namely that the principle by which the Court is responsible for final decisions on Constitutional matters, Judicial Review, isn’t actually in the Constitution itself or any founding document for that matter.  Instead, it dates to Supreme Court Justice John Marshall who defined the concept in the famous Marbury v. Madison decision in 1803.  “It is emphatically the province and duty of the Judicial Department to say what the law is,” he wrote.  “This doctrine…would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument. The rule must be discharged.”

This has been a (mostly) accepted proposition ever since, but one that hasn’t actually been codified in any Founding document, law, or amendment.  I certainly understand the appeal:  The Constitution itself describes the powers of three “separate but equal” branches of government as the phrase is often used.  Judicial Review places the Court on a higher plane, adjudicating what can essentially be seen as right and wrong for the other two branches.  It can rollback items passed by the legislature and overrule decisions by the executive.  In this sense, it’s certainly not equal.  Their opinion is the final matter unless an amendment is passed, something that has only happened 27 times in history.  What if the principle of Judicial Review is fundamentally flawed and a more free-for-all approach is more big-D Democratic?  The devil, of course, is in the details.  One can imagine the ignore and defy approach working at the Federal level, at least for a while.  President Jackson was able to proceed with his plan because Congress tacitly supported it by failing to act against him.  Congress can check the President anytime by controlling the purse strings or passing a law forbidding a certain action, even choosing to impeach the officeholder.  If President Biden, for example, were to attempt to nullify a Supreme Court decision Congress could ultimately nullify him if they agreed with the Court.  In a system of three co-equal branches of government, it’s reasonable to believe that agreement between two trumps the opinion of the third and it might be possible to replace Judicial Review with a more directly contradictory model.  The executive and legislative branches, however, frequently change hands from party to party without a lasting majority.  Executive Orders, for instance, are often issued by one President, only to be invalidated by the next.  The same situation would almost surely hold for ignoring Court opinions.  They’d be defied one day, and followed again before the week is out in historical terms.  Congress has also been known to change its mind, resulting in a never ending merry go round of agreement and disagreement with no coherent policy.

The result would be anarchy, and that doesn’t even consider what will happen when all 50 states get in on the action.  If President Biden can defy a ruling, why not Governor Ron DeSantis?  One could imagine a scenario where a Democrat defies a ruling like the recent decisions on gun rights and Roe v. Wade while a Republican governor supports them.  Federal law trumps state law, but Executive Orders aren’t laws.  What happens then?  President Jackson correctly identified that the Court has no way to enforce its rulings, having no troops or police force.  The enforcement comes from a tradition of deference and a desire to follow this long standing democratic norm.  If you rip this away, however, the executive controls the military and can certainly implement a proposed policy via force, against the will of both the legislature, the judiciary, and the states.  That, however, would require overthrowing a state government by force, something that hasn’t happened since the Civil War.  It is impossible for me to believe that any President would commit to such a course of action after intentionally defying a Supreme Court decision.  This would mean the President went against both a co-equal branch of government and a sovereign state that agreed with that co-equal branch of government at the same time.  In that situation, it’s likely that every state would have to go on record as to where they stood and we can only imagine what that might look like except to say it would mean another Civil War.  If, however, the President is unwilling to go this far, then his or her executive orders have no more meaning than court rulings, bringing us back to where we started.

Putting this another way, Judicial Review might not be the ideal model in principle, but it stands as the only truly workable one in practice.  The alternative is increasingly escalating conflict, armed and unarmed, coupled with endlessly changing laws.  These are not the foundations of a stable government, but there is of course a more reasonable way forward:  How about progressives actually build the necessary coalitions to pass the laws or even Constitutional amendments they desire?   They keep telling us their position is popular. If so, they shouldn’t have a problem getting the votes in the usual fashion.


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