Don't Pack the Court

Why the left must defend judicial independence.

When populist demagogues come to power, there is one thing they nearly always do: attack the courts.

Populists claim to embody the will of the people. Because they have won elections, they are, they say, entitled to do what they want. Majorities rule. Judges who insist that there are constitutional principles that limit what presidents or prime ministers can do are an illegitimate obstacle to the expression of the majority's will.

So populist rulers try to curtail the jurisdiction of the courts and to replace recalcitrant judges with compliant ones. They aim to ensure that they will win the next election by controlling the media, repressing the opposition, and excluding groups that are likely to be hostile from the electorate. To succeed, they need judges who will say yes to all these attacks on democratic institutions.

Surely, liberals and leftists here in the United States should want judges who will say no. And yet, many of us are writing articles attacking the Supreme Court as undemocratic. Why are we so eager to pack the court with compliant judges, or to limit its jurisdiction? Why are we writing articles that Viktor Orban would happily translate into Hungarian—or Bibi Netanyahu into Hebrew?  

The answer, of course, is that President Trump has, with the help of a Senate majority that barely looks at the qualifications of the judges it confirms, already filled the court with rightwing jurists. Liberals and leftists, then, are not attacking but counter-attacking. We need to do pretty much what Trump has done—but from the other side.

I want to argue against the wisdom of such a counter-attack. After all, Trump hasn’t been an entirely successful populist demagogue. His re-election isn’t assured, and many court rulings, including some important ones by the Supreme Court, have gone against him. So rather than opposing the Supreme Court because of its ill-gotten conservative majority, we need to think carefully about judicial politics.

What do we want courts to do? What are judges for?

In most democracies, judges have two critically important duties. First, they must bar any effort by the people or their representatives to discriminate for or against particular individuals (or groups). As Rousseau taught long ago, the people must rule generally. That does not amount to a prohibition on welfare programs aimed at the sick or the old, for we all fall ill and we all hope to live to a ripe age. What it means, most importantly, is that vulnerable minorities must be protected—against, for example, nationalist policies that deny their equal standing or set limits on their cultural rights.

The second duty of judges is to ensure the integrity of democratic politics. They must prevent executive overreach—as when the President declares a national emergency, giving himself near-dictatorial powers, even though there is no actual emergency. More generally, judges must preserve the right to oppose any prevailing majority or ruling party, which is only possible if they help to maintain the full set of civil rights and freedoms: free speech, a free press, and the rights of assembly, petition, and protest.

All majorities in a democratic state are, in principle, temporary. They are the product of one set of interests and arguments at one moment in time. Different sets of interests and arguments are always available—so long as judges fulfil the duty of safeguarding their steady availability. Democratic debate doesn’t have an end. Any effort to end it is not an instantiation of majority rule, but rather an attack on the rule of the next majority. 

If judges resist discrimination and defend the integrity of democratic institutions, they will help to protect us against bigoted demagogues and tyrannical majorities. But I am skeptical about judicial interventions in social and economic policy. There are no constitutional requirements about how to organize the economy or provide for the people’s welfare. Neither laissez faire nor “from each according to his ability to each according to his needs” is—or should ever be—legally entrenched. These are matters for political decision, not judicial rulings. There surely is some work for judges to do at the margin of social and economic policy: dealing with arbitrary seizures, fraud in advertising, coerced exchanges, and much more. But the central issues, like how health insurance is provided and whether health care is guaranteed, should lie outside their reach.

So we want judges who are ready to overrule majorities in some cases, yet willing to defer to them in others. Brave judges who would, for example, have stopped the transfer of Japanese-Americans to concentration camps in 1942 and who would have rejected immigration policies that targeted Muslims in 2017. Restrained judges, who would, in 1933, have decided that it's none of their business how the federal government responds to mass unemployment, and who would, today, avoid ruling on how health insurance is paid for.

How do we get courts to be at once this brave and that restrained?

Here are some modest proposals.

First, stop attacking the Supreme Court as an undemocratic institution. Judicial review is a necessary feature of constitutional government and of liberal democracy. (The adjective “liberal,” in this context, indicates our commitment to the idea that state power always has to be limited—even when it is exercised by an elected head of government.)

Second, make the argument for the proper uses of judicial authority. My version is entirely unoriginal; legal scholars know it well. But it isn’t common knowledge, and it hasn’t been defended with sufficient force on the liberal left (or with any force at all on the farther left).

Third, if Republicans succeed in appointing Amy Coney Barrett, and a Democratic president and senate inherit a 6-3 conservative majority on the Supreme Court, wait and see what rulings they make. The current court, with its 5-4 conservative majority, has forcefully told President Trump that he is just as much subject to the law of the land as any other American. It is possible that the six conservative judges on the new court will, likewise, end up having more important disagreements with each other than many now assume. So don’t act right away.

Fourth, instead of waiting for a court decision on Roe v. Wade, immediately start the state-by-state political fight for abortion rights. In most western democracies, abortion rights have been vindicated in the legislatures, not in the courts. This is a fight that, at least in most states, can be won in America as well—and such legislative victories would demonstrate the strength of the liberal left and greatly improve its morale.

Finally, never say never: If the Court makes it impossible to provide universal health care, to deal effectively with climate change, and to reduce social and economic inequalities, then—and only then—expand the number of justices to eleven. This would redress the injustice of the seat that Republicans stole by refusing to consider Barack Obama's nomination of Merrick Garland in 2016. It would also, for the moment, leave a one-vote conservative majority in place, thus politicizing the judiciary much less than the full-scale court packing schemes currently championed by parts of the Democratic Party.

Is all this another example of liberal feebleness and fearfulness? Maybe. But our radicalism should be expressed in the legislation we fight for, not in attacks on institutions we need to preserve liberal democracy. Be politically tough—but be cautious with the court.

Michael Walzer is Professor Emeritus at the Institute of Advanced Studies and Editor Emeritus of Dissent.