We Are All Supreme Court Skeptics Now

Democracy is in peril. The majority no longer rules; a determined minority has the whip hand. The least accountable branch of government, the Supreme Court, has fallen into the hands of an aggressively counter-majoritarian faction, which intends to traduce self-government for ideological ends. The time has come to consider drastic countermeasures against our robed masters and their nascent tyranny.

These arguments are on the lips of many liberals lately. With the nomination of Brett Kavanaugh to the Supreme Court, general Trump-era anxieties have found a focal point in the fear of right-wing judicial activism, of a high court that pushes policy rightward and allows Republicans to lock in anti-democratic advantages.

But any liberal with an ounce of self-awareness should recognize the resemblance between their sudden fear of juristocracy and the long-standing conservative critique of exactly the same thing. Indeed it’s quite striking, and ironically amusing, to have Trump-era liberals striking the same anti-Supreme Court notes as the talk-show populists and religious-conservative intellectuals of my own not-so-distant youth.

Partisanship being what it is, I don’t really expect either side to learn anything from these echoes and convergences. But for liberals newly awakened to the dangers of judicial power, let me offer two suggestions for thinking seriously about democratic accountability in Congress and the courts.

First, it would be wise for liberals to recognize that neither a judiciary out of step with democratic majorities nor an electoral advantage for one political apparatus are new things in American history — because when the Democratic Party dominated American politics both were important aspects of liberalism’s rule.

The politics of the 1940s and ‘50s and ‘60s would have still been generally liberal without judicial activism; Democrats would have still held congressional majorities, mostly, without the baked-in advantages that gave them more House seats than their share of the popular vote.

But the countermajoritarian sweep of liberal jurisprudence in that era was still dramatic, extending beyond race and segregation to encompass the entirety of the culture war, where majorities were consistently overridden, legislative debates consistently short-circuited, and long-standing features of American life — ecumenical school prayer, Christian-influenced morals legislation — overruled or uprooted by fiat.

At the same time, the political majority that generally supported this judicial activism was buttressed by less-than-democratic advantages. If today’s Republican Congress has slightly more power than its vote share would imply, the old Democratic coalition regularly won House majorities dramatically larger than their share of the two-party vote — a pattern that persisted well into the Reagan era.

Oh, and even if you discount Cook County voter fraud, there’s a strong case that Richard Nixon actually won the popular vote in 1960 — so even liberalism’s Camelot was quite possibly countermajoritarian.

Now, liberals freaking out about the current Republican Party’s undemocratic advantages are under no obligation to abjure the Warren Court or JFK or the achievements of, say, the 1974-76 Congress (where the Democrats enjoyed a two-thirds supermajority in the House despite winning only 57 percent of the popular vote). But how they think about their past advantage should inform the change they seek today.

If what they want most is just a return to that liberal-dominated past, then they’ll be inclined to embrace hyperpartisan ideas like the court-packing fancy that swept liberal Twitter recently, or to continue answering Republican House gerrymanders like the one attempted in Pennsylvania with the liberal equivalent that’s operative in Maryland.

They’ll also be inclined to embrace convenient theories for why the current conservative coalition deserves to be not just beaten but buried — like the nonsense conceit, floated by Hillary Clinton among others, that the much larger share of U.S. GDP in Clinton-voting regions is somehow a mark of the liberal coalition’s virtue, an indicator that those places deserve more representation than their mere share of the popular vote supplies.

On the other hand, if liberals genuinely want to permanently reduce the power of unelected justices and make the House more democratically responsive, they’ll seek reforms that don’t just attempt to grab back liberalism’s lost advantages. Term limits for Supreme Court justices are one obvious example of a neutral reform that might weaken juristocracy. Similarly, there are structural reforms to the House, like a big expansion of the number of representatives and the abolition of the single-member district, that could increase democratic accountability without obviously serving either coalition’s partisan interests.

Of course, liberal ambitions will also be shaped by what conservatives are doing with their present power. A conservatism that seeks to widen its narrow coalition and practices the judicial restraint it preaches might open more space for reforms that aren’t just one-sided grabs for partisan power. A conservatism that skips gleefully down the countermajoritarian path, embracing voting restrictions and judicial activism at every opportunity, will inevitably encourage purely partisan countermeasures from liberals.

The latter is more likely; the former more desirable. And because we are something of a juristocracy, the choices of one man, Brett Kavanaugh, will play an outsize role in determining which scenario we get.