Case for stripping

The case for stripping the Supreme Court of its power

A Harvard law professor on whether it’s time to rethink the nation’s highest court.

By Sean Illing

When he was arguing for the ratification of the Constitution, Alexander Hamilton wrote that the judiciary “will always be the least dangerous branch to the political rights of the Constitution,” in part because he believed the federal courts would stand above the political fray and act as a bulwark against tyranny from all directions.

But it’s hard to defend the Supreme Court on these grounds today.

As my colleague Matthew Yglesias has argued, the Court is now a blunt political instrument, used repeatedly to undermine outcomes of democratic governance — often on behalf of corporate interests. And the recent disaster that was the Brett Kavanaugh confirmation has further delegitimized the Court in the public’s mind.

So it’s perfectly reasonable to ask if we should abolish the Supreme Court, or at the very least strip the Court of its ability to overturn laws that it rules unconstitutional. If the Court is no longer a neutral arbiter of the law, if it’s gradually shape-shifting into a partisan weapon, then maybe it’s time to rethink its role in our constitutional system.

I reached out to Mark Tushnet, a law professor at Harvard University, to talk about the case for abolishing the Supreme Court. I asked him if the Court is still fulfilling its constitutional role, if it’s unusual for a liberal democracy to place so much power in a single court, and if he thinks Democrats should consider packing the courts or imposing term limits on justices.

A lightly edited transcript of our conversation follows.

Sean Illing

What would you say is the basic mission of the Supreme Court in our constitutional system?

Mark Tushnet

The Supreme Court’s role is to tell the people and the political branches what the limits of their power are. Sometimes that means rejecting conservative policies, and sometimes that means rejecting liberal policies. But the general role, as it’s come to be understood, is to police the boundaries of our political system.

Sean Illing

Do you think the Court competently fulfills this role today?

Mark Tushnet

Whether the Court is competently pursuing it depends on a couple of things. One is your assessment of the legal quality of the work they do. And another is, of course, your assessment of the merits of the limits that they are placing on political choice.

As to the latter, it’s just going to depend on your politics. For a while, liberals liked what the Court was doing, and then they didn’t. For a while, conservatives didn’t like what the Court was doing, and now they do.

Sean Illing

And what of the “legal quality” of the work they’re doing?

Mark Tushnet

I think the honest answer there is that, in the modern era, the quality has ranged from minimally competent legal analysis to extremely bad decisions that are announced without a clear or compelling explanation.

Sean Illing

I’m tempted to ask for examples of bad decisions, but let’s focus on the case for abolishing the Supreme Court, or at the very least for abolishing judicial review, which is the Court’s ability to decide whether a law by the government is constitutional.

Mark Tushnet

There are two components of the case for getting rid of judicial review. One is that, as a matter of basic democratic principle, the people ought to be able to consider policies and then vote on them without having the courts step in and say “no.” So from a democratic point of view, it’s hard to justify allowing the courts to single-handedly overrule popular will whenever they choose.

The second component is that judicial review may actually impair the public’s ability to engage in serious thinking about what the Constitution means, and what we want to do in light of what we think our Constitution says. In a way, the Supreme Court simply takes on this conversation for itself, and leaves the citizenry as bystanders.

Sean Illing

Does the Court’s power of judicial review come directly from the Constitution?

Mark Tushnet

I should start by saying I’m not a textualist or an originalist, which is to say I don’t think the meaning of the Constitution is stable or fixed from the time it was enacted. However, I think it was widely understood when the framers created a court in a system with a constitution that that court would have the power to invalidate legislation it deemed unlawful. That’s not written into the US Constitution, but it was clearly a background assumption at the time and has been ever since.

Sean Illing

How unusual is it for a liberal democratic system like ours to allow judges to overturn laws outright?

Mark Tushnet

In the modern era, since the middle of the 20th century or so, this has become a pretty common role for courts worldwide. There are important variations in the way countries do it, however. And in particular, since the late 20th century, constitutional designers and implementers have switched from a US style, where the court has the last word and there is nothing you can do about it, to a system that allows for what legal scholars call a more “dialogic” process — which basically means there’s an interactive process between the court and the legislature.

Sean Illing

And how does that kind of system work?

Mark Tushnet

The idea is that the legislature passes a law, the court says it’s unconstitutional for this or that reason, and then the legislature has an opportunity to respond to the court. In some cases, the legislature will just say, “We understand your reasons, but we disagree with them, and we’re going to go forward with the policy anyway.”

Sean Illing

Do you think we’d be better off if we abolished the Supreme Court in its current manifestation and moved to a more balanced system like the one you just described?

Mark Tushnet

Yeah, I do. I’m a big fan of the dialogic approach. And it’s worth noting that even very conservative legal scholars like Robert Bork have proposed this sort of system, which suggests this is something people across the ideological spectrum could get behind. And I’ve felt this way for my entire career, regardless of the ideological makeup of the Supreme Court.

Sean Illing

We have this idea of the Supreme Court as a bulwark against majority tyranny and minority oppression, but that’s not the reality. There have been glaring exceptions, especially in the 1950s and ’60s, but in general the Court has continually defended the powerful against the weak — from slaveholders to segregationists to corporations. Why should the individual citizen feel invested in the Court at this point?

Mark Tushnet

If you look at the overall course of US Supreme Court history, the description that you’ve offered is basically correct. But there are exceptions, as there always are, to that kind of generalization. One is the relatively brief Warren Court era, which still occupies the imagination of many people who think about the Constitution.

We’ve had the Brown v. Board of Education decision and Roe v. Wade, and then, more recently, the Obergefell v. Hodges decision that legalized same-sex marriage — and all of these decisions were empowering for different segments of the population.

The big question is whether the gains from those kinds of protections of minority interests are substantial enough to outweigh the Court’s interference with legislation on behalf of the most powerful elements of our society. If you’re focused on many recent decisions, like Citizens United, the Court certainly seems to be favoring corporate power, but the picture is less clear when you step back and evaluate it over a much longer period of time.

Sean Illing

You alluded to this a minute ago, but I want to push you a bit more on it. Democracy implies, at the very least, that citizens are allowed to choose the policies that govern their lives, either directly or indirectly. But the Court’s primary function seems to be to undermine majority will when it deems it necessary. It’s probably wise to have a constitutional safeguard of some sort, but do you think the current arrangement is a sustainable contradiction?

Mark Tushnet

If you think people vote for policies without paying any attention to the Constitution, then you might want someone watching closely and stepping in to intervene at exceptional moments, and the courts are where you want that to happen. My own view is that it’s fine if you have some opportunity to respond afterward, which is why I prefer a dialogic system.

But it’s also the case that in many of the most contentious issues, the people have reasoned constitutional judgments, and the Court just comes in and says the people are in error. But that isn’t always the case. Sometimes it’s a legitimate disagreement between the voters and the Court, and then it comes down to a political judgment. This is when the role of courts becomes very problematic.

Sean Illing

Do you support imposing term limits on justices?

Mark Tushnet

I’ve signed a proposal for 18-year term limits. I think over time that might have some effect. It won’t immediately have much effect because in some ways the damage has already been done, but it would make the process more regular and predictable, and norms of reciprocity might develop, which we desperately need.

Sean Illing

Is there some other way forward, perhaps turning the Supreme Court into a body of top legal thinkers in the country, and instead of having a fixed number of justices review each case, we have a specified number of randomly chosen justices selected for each case?

Mark Tushnet

Well, Sweden does something like that — and Sweden is not a terrible place to live. You probably could design something that would work effectively. Again, the details would matter, and reconciling that with the existing Constitution would be very tricky, but sure, it’s conceivable. I think there is some enthusiasm among Democrats about alternative constitutional designs, but they can’t do anything about it now. But if they win in 2018 and 2020 or beyond, who knows?

Sean Illing

The Constitution doesn’t specify how many people should sit on the Supreme Court, and there is some momentum on the left for what’s called a court-packing strategy, which basically involves adding several ideologically sympathetic justices in order to create a more favorable Court.

Do you think this is a good idea?

Mark Tushnet

There has been a lot of discussion about this among law professors, and ultimately it comes down to a political judgment. Maybe it’s wise, maybe it isn’t — politics is not my area of expertise. But because it might turn out to be politically wise, it’s worth developing arguments for court-packing and explaining why the norms around tinkering with the Court’s composition might be worth breaking.

I think this is the role of constitutional scholars — to lay out all these arguments so that people understand the history and the stakes. But ultimately the decision to do it or not will have to be made by politicians, not law professors. And there is no way to know beforehand what the implications will be down the road.