On Monday night, America’s farce of a democracy was on full and rank display. Fifty-two senators—representing nearly 14 million fewer individuals than their opponents—decided to install a judicial nominee into the nation’s court of last resort. The new justice was handpicked by a president who came to power after losing the last election, and her promotion—the president’s third high court appointment, of a total 9 seats on the bench—took place hardly a week before the next one. All this was thanks to a strange and antiquated constitution—composed in secret, imposed by coup d’état—whose interpretation will be left to a 9-person council of unelected, life-appointed, mostly Catholic, elite-educated, wealthy lawyers, with the final say in the country’s laws for generations yet to come.
In a civilized democracy, the composition of a court should pass with little public notice. But no civilized democracy would possess an institution quite like ours, in which 9 unelected, life-appointed, mostly Catholic, elite-educated, wealthy lawyers get the final say in the country’s laws for generations yet to come. The rushed and illegitimate appointment of Justice Amy Coney Barrett has brought this into sharp relief. What’s more, it has exposed—and will continue to expose—a collective lie that most concerned Americans believe about their Supreme Court and what’s at stake in it. It’s a story that’s been repeated by politicians, perpetuated in law schools, and disseminated (consciously or not) throughout the general public. And the longevity of this judicial myth has played no small part in bringing our shambled democracy to where we are.
The story goes like this. The Supreme Court is the site of a struggle to the death between two judicial ideologies. On one side are conservatives, whose watchwords are “judicial restraint” and the constitution’s “original meaning.” The conservative jurist is opposed to all attempts to “legislate from the bench,” because judges, as Chief Justice Roberts put it famously in 2005, “are like umpires. Umpires don’t make the rules; they apply them.” His main concern, then, is to determine what the law already is—and what it is, is whatever the constitution meant in 1787. His mortal enemy is what he calls an “activist” judiciary: a court that makes up its own law by pulling it from their own ass, twisting the constitution beyond all recognition, to impose its liberal preferences against the will of the majority. For her part, the liberal jurist has no qualms about reinterpreting fusty texts, in light of higher principles and the changing times, to keep the constitution current—even if this means that she’ll read into it what the framers never dreamed of. And by developing the doctrines of a “living constitution,” the liberal bloc has turned the court into a custodian of liberal rights and freedoms, a bulwark against the bigotry of the masses.
Tons of right-wing energies and monies have been funneled into wresting back the courts from this alleged judicial junta. The appointment of Justice Barrett on the Supreme Court—to form a sound right-wing majority—is the culmination of these efforts. Conservatives see in Justice Barrett a competent successor to her mentor, Antonin Scalia; a trusty Roman Catholic; and an “originalist” who will restrain the liberal bent of an “activist” judiciary. For the exact same reasons, liberals see in her a villain straight from Margaret Atwood; an umpire whose rules are fixed in an 18th-century book; and a crypto-theocrat who will undo a century of legal rights our once-benevolent rulers issued hitherto.
For the first time in a while, liberals are wising up to the perils of a technocratic court that’s unresponsive to the democratic will. And conservatives—who preached for many breathless decades about the virtues of “restraint” and judicial modesty and deference—have suddenly discovered that they rather like our judicial junta after all. The events of Monday night confirm to me that the conventional myth of our judiciary got it wrong. It’s not restraint or deference we need to worry about when it comes to reactionary elements on the court; and those who put progressive stock in a judicial aristocracy may soon eat their words. The arc of judicial activism is long, and it bends toward the right. To see why, it’s necessary to go back—long before the present culture war began.
The first time that the Supreme Court really tampered with national policy was in 1803. In Marbury v. Madison, a relatively minor dispute between an aspiring judge and the secretary of state was resolved with an explosive innovation: Chief Justice Marshall simply decreed that the court had the authority to deem a democratically enacted law of Congress unconstitutional and void. This naked power-grab (known in the biz as “judicial review”) remained more or less low-key for half a century, but resurfaced in the infamous Dred Scott case. There, in one fell swoop, Chief Justice Taney ruled (1) that black people could not be citizens of the United States, and (2) that the Missouri Compromise, which banned slavery in certain territories, was void because its ban on owning slaves ran afoul of slavers’ constitutional “right to property”—a decision so bad, it took a Civil War to fix it.
This unqualified right to property (let alone, to human chattel) does not exist in the constitution. It had to be judicially created. Justice Taney looked to the constitution’s 5th amendment—which prohibits the federal government from depriving someone’s “life, liberty, or property, without due process of law”—and inferred from it the radical idea that property was fundamentally exempt from democratic oversight, no matter the process involved. It was the first major example of the high court pronouncing the existence of substantive legal rights, unmentioned in the constitution, against the democratic will. And for the next two centuries, long after the abolition of chattel slavery, the scope and meaning of such “due process” rights would be a chief obsession of the U.S. constitutional regime.
Just after the Civil War, the U.S. passed the constitution’s 14th amendment, which made “due process” rights enforceable against state governments as well. It was hoped that this amendment—which guaranteed “due process” rights and “equal protection of law” to all “persons” in U.S. territory—would protect the liberty of former slaves from racist states’ oppression. And it did, in many ways, but with fatal limitations. For one, the Supreme Court ruled that Congress had no authority to stop racial discrimination by private businesses and actors. For another, the court held that racial segregation by public institutions was also well and fine, so long as states adhered to the mealymouthed guideline of “separate but equal.” And, though they had little trouble restricting the 14th amendment’s use as a shield for the oppressed, the court spared no efforts in discovering their own creative use of it as a weapon for the powerful. In what’s called the “Lochner era,” the court wielded “substantive due process” rights as a cudgel to beat down state and federal laws that regulated business or protected workers, based on the theory that economic actors should be free from government intervention—as if by “liberty,” the Radical abolitionists who drafted the 14th were really talking about the freedom of the market.
(Justice Holmes wrote famously in his dissent to Lochner v. New York: “This case is decided upon an economic theory [laissez-faire capitalism] which a large part of the country does not entertain….The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.”)
It’s no wonder, then, that for much of U.S. history, the left held the judiciary in contempt. For most of its existence, the Supreme Court placed itself routinely on the side of property and privilege. In the face of democratic upheavals, the court went on the defense, shoring up the pockets of local power (e.g., the states, private businesses, the market) against egalitarian advances. It was a conservative institution; yet it was eager to use rather un-conservative (by today’s standards) techniques, like “judicial activism” and inventing “rights” from whole cloth, according to political whim. It took the 14th amendment—a revolutionary expansion of liberty and equality in aid of the oppressed—and stretched its meaning into a tool for monied interests to exempt themselves from democratic accountability.
This is why I find today’s conservative rhetoric about the judiciary and judicial philosophy so farcical. When one hears a conservative complain about an “activist court,” a court that’s more concerned with imposing its own policy than hewing faithfully to the law, it sounds almost convincing—as a left-wing critique. In fact, the first major proponent of judicial “originalism” was the liberal jurist Hugo Black, a New Deal justice who opposed the right-wing Lochner court’s judicial innovations. Conservative originalism didn’t really begin in earnest until after the New Deal, which is when the left’s historic animosity to the judiciary started to reverse.
From its very outset, the judiciary was the foremost obstacle to Roosevelt’s New Deal legislation. The court’s chief function was to sabotage proposals to regulate the economy, while upholding the power of state and capital to quash the burgeoning workers’ movement. But when the president threatened to “pack the court” with liberal justices, they started singing a different tune. To maintain their façade as a non-partisan custodian of democracy, the court yielded. The reign of Lochner was done. A settlement was reached, whereby the court deferred to Congress in economic or commercial matters, but took an active role in extending “due process” rights in non-economic affairs.
What followed was a spree of novel rights protections issued by a (comparatively) liberal-friendly court: ending segregation, expanding civil liberties, voiding laws against contraceptives, sodomy and abortion. Eventually, “substantive due process” jurisprudence paved the way to same-sex marriage. Parallel to this lineage was a series of 1st amendment rulings that fortified the rights of speech, protest, labor activism and religious worship against the overbearing state. These are the things which liberals look fondly back on, when they imagine a bench of righteous worthies swayed by smart oration from plucky lawyers to stand on the right side of history.
To its newfound liberal adulators, the court became a way to bypass the dysfunction of racist states and backward legislatures. Still, it’s not immediately clear that abstract legal rights were the best vessel for these progressive gains; nor that the unelected, unaccountable court was the best source to secure them. After all, pronouncing rights by judicial fiat against the will of the majority had been a reactionary idea. It wasn’t until this sort of jurisprudence put black kids in white classrooms, or gave women the right to choose, that conservatives reconsidered. And so conservatives, having gotten a taste of their own medicine, fashioned an entire identity around rejecting a judicial theory which they had pioneered. Right-wing firebrand Justice Scalia, the household name of “originalism,” pulled no punches about this; he traced the legal lineage of Roe v. Wade directly back to “the discredited substantive-due-process case of Lochner,” and thought that “the original precedent” of both cases was none else but the dreaded Dred Scott decision.
That comparison—between a woman’s reproductive choices and a slaver’s ownership of human chattel—is insulting, but it contains an essential truth. In fact, Scalia was more correct than he intended. Using the high court to enforce unenumerated rights was a dangerous and anti-democratic tactic from the start. Historically, it served the whim and interests of the powerful—of people like Scalia. And with that lineage in mind, who knows what other ghosts may stick around with that ancestral baggage?
Unluckily for us, we live under the reign of a high court that’s given us the answer. For the past decade or so, Chief Justice Roberts has presided over what some advocates and scholars call a “new Lochner era”: a right-wing court that’s rather eager to pronounce its own politicized readings of what they want the law to be (or what they think the Founding Fathers wanted, which is conveniently the same thing). A flashpoint of this era came in the right-wing challenge to the Affordable Care Act of 2010 (a.k.a. “Obamacare”), a minor insurance reform once championed by conservatives, but which became a call to arms for mass resistance by the right when Barack Obama signed it. The act’s “individual mandate”—requiring, under penalty of fine, that most Americans get insurance—was viciously opposed as an assault on personal liberty, on par with fascism or communism (take your pick). In the end, Chief Justice Roberts upheld the mandate by deciding that it wasn’t really any different from a tax; but not before opining that “the country the Framers of our Constitution envisioned” did not permit Congress “to use its commerce power to compel citizens to act as the Government would have them act…fundamentally changing the relation between the citizen and the Federal Government.” Obamacare survived; but the battlecry of “liberty” had been sounded by the right, and it was answered by a court no longer willing to show deference to Congress.
Some libertarian true-believers, like Richard Epstein and Randy Barnett, as well as politicians like Rand Paul, have been pushing the judiciary to revive a Lochnerite “due process” right to “economic liberty” once again. But the main success of neo-Lochnerism has been smuggled in through the 1st amendment and related law. The seminal case in this regard is Citizens United v. F.E.C., which struck down the ability of Congress to limit corporate electioneering. Relying on the tendentious ideas that money itself is speech, and that corporations were the sort of “persons” whose speech needed protecting, the court ruled that the attempt to regulate the flow of corporate cash into the electoral process was an act of discriminatory censorship against a “disadvantaged” “identity” (that is, the corporate identity). The court broke out again the world’s tiniest violin in McCutcheon v. F.E.C., which held that putting a cap on the overall amount with which a billionaire could stuff the campaign coffers of his pals and party was to “seriously restrict[ ] participation in the democratic process.” In so doing, the court specifically declined to set the boundaries of “free speech” by reference to a “generalized conception of the public good.”
We’ve only begun to see what clever uses the 1st amendment can be put to in the hands of a high court unencumbered by the “public good.” In 2011, for example, the court struck down a Vermont law restricting the sale and disclosure of medical records to pharmaceutical marketeers. And in 2018, the court overruled the ability of public sector unions to require dues from the employees they represent. In both cases, the rationale was that such laws infringed on “freedom of speech,” even if the laws in question were basic matters of commercial or employment regulation. Never mind all that, the high court reasoned: there was “speech” involved. Likewise, it may seem uncontroversial to pass a law requiring the disclosure by licensed healthcare centers to their customers of certain medical information, such as the availability of free or low-cost options at public clinics. But not so, said the court, when it came to the “free speech” right of religious clinics not to inform women about abortion.
In simpler times, you could count on conservatives not to be so promiscuous with legal rights that issued from the bench. Thirty years ago, the court denied that “religious freedom” could excuse an indigenous man’s ingestion of peyote, a Schedule I controlled substance, even for a religious purpose. It was none other than Scalia who authored that decision, in which he quoted a 19th century case sustaining laws against polygamy to Mormons: “Can a man excuse his practices to the contrary [of law] because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Harsh words, all things considered, for a victimless (and religiously required) “offense.”
To correct this racist and draconian ruling, Congress passed the Religious Freedom Restoration Act of 1993, which keeps the federal government from “substantially burden[ing]” the free exercise of religion. But what began as a liberal-sponsored law to protect the rights of religious minorities became a weapon to disembowel the regulatory state. In Burwell v. Hobby Lobby Stores, Inc., the court relied on R.F.R.A. to exempt a corporation from having to cover contraceptives in the insurance plans of employees, if the owners wished to stiff their workers on religious grounds. And in courts around the country, at all levels of the judiciary, conservative litigants have found in R.F.R.A. (or in its state-level equivalents) a helpful workaround for all those pesky laws—like those against discrimination, for example, or child labor—that come in conflict with the faith.
It’s worth keeping in mind the timeframe of what I’ve just described. Fresh on the heels of the Great Recession, the country was still reeling in the aftermath of the greatest financial swindle in recent memory. It was a time when any self-respecting masses would be busting out the barricades and the guillotines. At this critical juncture, as the ruling coalitions of past eras were collapsing, and faith in orthodoxies reached new lows, the Supreme Court made it known which side of history and the class war it stood on. But to say that the judiciary is “conservative” is to understate the matter. The conservative, said William Buckley in 1955, “stands athwart history, yelling Stop.” Today, the right-wing court seems less concerned with stopping, or reversing, the liberal activism of its predecessors, than with advancing its own vision of disruptive and aggressive judicial power.
Understandably, liberals are feeling anxious that the right-wing court may overturn the past decisions which made abortion, same-sex marriage and all sorts of civil liberties the supreme law of the land. Whether or not such fears are realistic, it seems plain as day to me that the clear and present danger is not the stripping of rights on paper, but really the invention or expansion of other rights to sabotage progressive policies in practice. What good is a right to contraception, when corporations have the right to refuse coverage of what their owners personally object to? How safe is same-sex marriage, if public servants have the right to withhold marriage benefits from those whose orientations they oppose? We’ve been here before. One century ago, the Supreme Court found a way to exempt the ruling class from popular legislation, social consequence be damned. At brief and intermittent times, this incredible judicial power may have seemed a force for good, when used against a bigoted majority. But entrusting to a court the task of stewarding democracy was always a devil’s bargain, especially now that the far right is starting to think and act and demand accommodations like a persecuted minority.
Ever since the court kicked off this century by appointing a president against the will of the electorate, it’s shown no particular shyness about ruling with an iron fist (or gavel, as it were). The order of the day is no longer “restraint,” much less “deference” to democratic will. Corey Robin has pointed out that for all the talk of the Trump era’s populism and demagoguery, the right’s approach to power is as American as apple pie—as American as the constitution, at its worst. It’s rather telling that the right’s loci of power are in the constitution’s least democratic, most elitist features: the Senate, the Electoral College, and now the judiciary. To point this out is to invite the weaselly, nonsensical refrain that “America is a republic, not a democracy.” Well, that may be so, but it’s also true that no res publica worth its name would let 9 unelected, life-appointed, mostly Catholic, elite-educated, wealthy lawyers so routinely trounce the public will, let alone the public good.
Some liberal and left-wing critics are entertaining the possibility of “packing the court,” as Roosevelt threatened to do the last time the court was so intransigent, activist and thoroughly reactionary. That’s a start, but so long as we’re indulging fantasies we might as well look deeper. We’d be remiss not to consider that vesting power in judicial brahmins, with partisan means and ends, had been the problem to begin with. The question here is whether our judicial institution is in a crisis, or was a crisis waiting to occur. In either case, the right’s judicial hijacking has set us on a dangerous trajectory. “At every stop,” wrote Justice Kagan, in a dissent that sounded how conservatives used to sound, “are black-robed rulers overriding citizens’ choices.” Here lies the road to permanent minority rule.
New York, 2020.