It's Hard for One Party To Control the Judiciary
The Framers got a lot of things wrong, but got this one mostly right (with a caveat)
In 1992, the Republicans had won three straight presidential elections. They also had controlled the Senate for six years in the 1980’s. They had confirmed five Supreme Court justices, elevated a conservative Chief Justice who had been appointed by Nixon, and only two Democratic appointees remained on the Court. A year earlier, this new, conservative dominated Supreme Court had decided Webster v. Reproductive Health Services, which held that abortion restrictions need only be justified by a “rational basis”, the lowest level of judicial scrutiny, and had upheld a restrictive Missouri abortion law. It looked like conservatives would achieve their holy grail, overturning Roe v. Wade and allowing states to ban abortion.
It didn’t happen. The Court instead handed down a compromise ruling, Planned Parenthood v. Casey, which allowed for some new restrictions but upheld the core principle from Roe that a state could not ban abortion, as well as further holding that a state could not place a “substantial obstacle” in the way of a woman seeking to terminate her pregnancy.
There are various stories the legal and political world tell about Casey- how David Souter, thought to be a conservative, turned out to be a liberal; how Eisenhower supposedly did not care about the Court and appointed liberal pro-choicer William Brennan in a political trade (somehow the fact that Kennedy appointed the pro-life Byron White is forgotten), how Anthony Kennedy flip-flopped his position to join Sandra Day O’Connor and Souter in forming the crucial voting bloc for the compromise position.
But it is rarely mentioned that Casey was decided by a court with a 7-2 Republican majority, at the end of 12 years of Republican control of the White House. Indeed, what often gets bandied about instead is a statistic that shows that the Democrats have never had a Supreme Court majority since the Nixon administration. These two facts actually are both important, but not for the reason why the latter statistic is so often bandied about. Rather, what they show is that the Framers were actually right- the structure of the judiciary makes it resistant (not impervious) to partisan politics.
“Wait”, I can hear you saying. “The Supreme Court makes partisan decisions all the time. So do the lower courts.” Of course they do. We all remember Bush v. Gore, where a 5-4 majority held that Florida must stop its recount and declare Bush the President. And those of us who follow the courts can rattle off a string of partisan decisions, such as Shelby County v. Holder, which struck down a key provision of the Voting Rights Act on highly questionable grounds.
But that’s not the right way to look at this. Nobody, including the Framers, has their head completely in the sand. Of course the same societal conditions that cause us to join partisan “teams” in the first place will affect judges. And obviously, in a situation where the result of a case is winning or losing elections, like was clearly the case in Bush v. Gore, but was indirectly at issue in Shelby County v. Holder as well, you are almost certainly going to see a ton of partisanship.
And it’s also true that some issues are intimately connected to the most important sorting mechanisms between the parties. So now, you are unlikely to ever see another Souter or White. Republicans choose pro-lifers, Democrats choose pro-choicers. And thus, the Republicans’ current 6-3 majority is going to overturn Roe, and the vote will very likely be 6-3. At best it will be 5-4, with Roberts taking a position that allows a ton of abortion regulation but stops short of allowing bans. It is only a matter of time.
Similarly, on certain business regulation issues, such as consumer arbitration contracts, you are always going to get a pure partisan vote, because one of the major issues that sorts people between the parties is views on the regulation of business.
But all those cases constitute a small percentage of the Court’s business. There are still tons of unanimous opinions on cases that you never hear about. There are cases with unusual lineups where liberals join conservatives in dissent. And there are, most strikingly, cases where the conservative court reaches a liberal result even on a hot button issue. E.g., most recently, Justice Barrett joined an opinion holding that death row inmates were entitled to a spiritual advisor at their execution. And a year ago, Chief Justice Roberts and Justice Gorsuch joined the liberals in holding that gay and trans people could sue for employment discrimination under the Civil Rights Act.
A lot of people who talk about the Court for a living don’t talk very much about these cases, because the core of their message seems to be that the Court is going to rule 5-4 (or 6-3 now) against the liberals in every case of political salience, that they will overturn every piece of liberal legislation and mandate conservative policies on a national basis. The goals of this sort of advocacy, of course, are to increase the salience of the Supreme Court for voters and to lay the groundwork for an eventual attempt to pack the Court so that liberals will win all the cases. I do understand the arguments why those things should happen (for the record, I have no problem with the Supreme Court being extremely politically salient and big problems with court packing), but the claim that the Supreme Court does nothing but impose conservative policy preferences on the country through a series of 5-4/now 6-3 decisions is false as a factual matter. If you dislike (as I do) people making false claims to advance their political positions, even if you agree with the ultimate political goals, you should be concerned about this.
The fact of the matter is that this demonstrates something the Framers got right. I am not a great fan of the Framers. Indeed, overall, I probably agree with much of what Nikole Hannah Jones, of 1619 Project fame, thinks about the Framers. Their central concern seems to have been preserving slavery, and the major compromises in the drafting of the Constitution all seem to have been directed to achieving that end.
(As an aside, never underestimate the personal motivations of the Framers regarding slavery. We often treat slavery as if it was just the “great debate” on a social issue of the day, like one might have said about gay marriage in the 2000’s. But slavery was a lot different. The people who wrote the Constitution were slaveholders themselves. Slaveholders had both an economic and a personal interest in owning slaves. The slaves were doing the work on the large plantations that made them rich, and these men also were legally sanctioned in picking slaves out whom they could rape. Thomas Jefferson was having too much fun sexually exploiting Sally Hemings to ever support a ban on slavery, no matter what he might have said in his writings on the subject. So it was with the other Framers.)
But for all the Framers’ faults, they figured out the judiciary problem fairly well. They understood that factions (their term for political parties) would want their own judges to ratify their own preferred policies, especially policies that might not win a majority vote in a legislature (which is precisely true about many of the issues that political parties want their judges to decide their way in the present). So what you needed to do was make it both (1) difficult to appoint judges and (2) difficult to punish judges for “bad” rulings once appointed. The Constitution does both those things. You need a President and a Senate majority to appoint a judge, and you can only do it when there’s a vacancy. In theory Congress can create a vacancy, but because there are natural limits and norms that attend to the issue of expanding the courts, that’s tough to do too. And once appointed, a judge not only serves for life but also cannot see his or her pay reduced during service.
And this is what made a case like Planned Parenthood v. Casey possible. If it were either easier to appoint judges or easier to remove them, the Republicans would have used their 12 years in power to stack the deck completely against Roe. But they couldn’t do it.
Indeed, the most extreme example of a packed court in recent history was Franklin Roosevelt’s court- he served three terms plus part of a fourth and got to replace almost the entire court. Nonetheless, the Roosevelt court, facing an issue where it faced the most intense sort of lobbying by the administration and the military, during the middle of a war, on the issue of Japanese internment, still only ruled for FDR 6-3. It’s super-tough to stack the courts.
Now I realize this isn’t the story that activists want to tell about the courts. As I said, this isn’t meant to be happy talk. Some Supreme Court rulings have been awful, and Roe v. Wade seems moribund. There’s plenty of things to fear. But what we should not fear is that the judiciary will rule against the Democrats in all politically salient cases, or that the extreme views of the legal far right are going to be enacted by the Supreme Court. That is not going to happen. One indicator that it will not is that Justice Thomas, the avatar of that far right, continues to issue solo dissents with some regularity. In other words, he is expressing the frustration that even with 6 Republicans on the Court, he can’t get 5 votes (or even 4 for a certiorari petition) in support of his positions.
There are in fact lots of things that some conservatives somewhere fantasize about but which simply will not happen. For instance, the Supreme Court is not going to interpret the 14th Amendment as banning abortion. Doing this would require the Court interpret that provision to impose a legal duty on state governments to protect “life”, which could lead to anything from a right to health care to a right to legal redress against police who fail to protect Black lives. Most conservative legal thinkers reject that sort of thing, no matter how much they hate abortion.
Similarly, there’s no sign whatsoever that “economic substantive due process”, the doctrine that invalidated minimum wage laws and the like before the 1930’s, is making any sort of a comeback. Again, you can find fringe scholars calling for this, but most conservative legal thinkers think that is crazy. And there is also no sign whatsoever that for all the noise conservatives make about rolling back Congress’ interstate commerce power, that they want to return to the days of Hammer v. Dagenhart, where Congress had no power to regulate even very large enterprises so long as they were physically located within one state. Why do I know that? Because that would render all the federal drug and prostitution laws unconstitutional. Conservatives don’t want that.
Actually analyzing what the courts are going to do requires a case-by-case analysis. Top Supreme Court litigators are paid $1000+ per hour to do this on behalf of the wealthy and big corporations. It’s not easy, and it requires digging a lot deeper into what the justices are thinking than merely counting the votes by party. As an example, I heard from several expert lawyers for a couple of years that Gorsuch was going to vote with the liberals to affirm gay and trans rights. But if you read the takes of many liberal legal commentators on the Internet, they were convinced he’d never do it. Or at least they claimed to be. (Again, perhaps they have just resolved to always predict disaster because this is a part of their messaging goals.) And whatever the Framers might have thought about gay and trans rights, I think they would have said that the system worked in insulating Gorsuch from the views of the movement that placed him on the Court and allowing him to rule the way he thought the law actually required.
I said there was one caveat, and it is this. The increase of life-spans has increased judicial terms far longer than is needed to ensure independence, and in fact has created an atmosphere where parties can try to game the system by appointing really young judges. This does not guarantee that parties will win all the cases- these judges are still independent and may also change their minds over time or have heterodox views on whatever the parties’ priorities are 20 years from now- but it does mean that parties have a greater shot at achieving a sort of numerical dominance that was not possible in the past, and it also means they may appoint people who are not the best qualified in their party solely because of their age. Accordingly, some sort of term limit- 18 or 27 years are convenient numbers- would be a useful revision of the system.
But there’s no real case for wholesale changes. Each party is going to continue to win some and lose some, because the system makes it very hard to for a party to dominate the federal judiciary except by the only truly legitimate way of doing so, which would be to win a long string of elections.