I don’t usually write about the Supreme Court, leaving that to people who know it better than I do. But I am moved to put my oar in these waters by two recent news items. One is a poll, which tells us something about the country at large, and the other is testimony by leading constitutional experts about how the Court is undermining American democracy when it decides the constitutionality of acts of Congress.
What caught my attention, then, is a just-released Gallup poll about public confidence in the Court. I was also intrigued by the incisive and highly critical testimony of Yale Law School’s Samuel Moyn and by Harvard Law Professor Nikolas Bowie given on June 30, 2021, before the Presidential Commission on the Supreme Court.
The poll results and the testimony raise red flags about the Court’s work, its standing, and its place in our governmental system.
Court watchers and reformers would be well advised to digest the findings of the Gallup Poll as well as Moyn and Bowie’s wise reflections. And progressives, who have long defended the exercise of judicial review as being critically important for the protection of what Justice Harlan Fiske Stone called “distinct and insular minorities,” have reason to reconsider, if not rethink, their veneration of that power and prerogative.
That rethinking must be broad and deep, and one which is more penetrating, perhaps more radical, than the experts and our leading politicians may be willing to go.
As I will try to show, we need new voices, the voices of the American people, to weigh in on proposals now being floated, which include court packing, term limits for Supreme Court Justices, curtailing the power of judicial review. We need them to offer other reforms not yet imagined. We need a People’s (not a presidential) Commission on the Supreme Court.
But, first to the poll. Gallup measures public confidence in the Supreme Court annually. It found a 9% decline in that confidence from 2020, when it stood at 58%, to 2021, where it now stands at 49%. Respondents who say they lacked confidence in the Court rose from 36% to 44%, with the remaining 7% of the American public saying they had no opinion.
2021 was the first year since 2017 that confidence in the Court fell below 50%. During the first decade of this century, confidence averaged around 58% annually.
Gallup reports that 51% of Democrats and 51% of Republicans expressed confidence in the Court, while only 46% of self-described Independents agreed with that sentiment. It speculates that this even distribution of partisan opinion reflects the fact that in the last term the Court “handed down rulings that have alternately pleased and frustrated both sides of the ideological spectrum. The mix of rulings may have helped keep Republicans from viewing the court as a conservative ally, or Democrats from perceiving it as too ideologically extreme.”
To be fair, even with this year’s decline in the public’s confidence, the situation of the Supreme Court looks positively rosy in comparison with the low regard which Americans currently have for other major social, economic, and political institutions.
Still, the overall decline in public confidence suggests that Justices, particularly Chief Justice Roberts, who seek to marshal and preserve the institutional legitimacy of the Court have reason to worry. They may need to recalibrate their strategies. This is especially the case given the high stakes cases involving abortion, gun rights, and religious freedom that are on the Court docket for its next term.
Impending decisions in those cases, along with the stark fact of a solid, conservative majority on the Court, have set off alarm bells among progressives and turned up the heat on those who have long looked to the Court for protection.
Last winter, Professor Moyn wrote that since the era of the Warren Court, “in the popular mind of Americans, the judicial supremacy that liberals embraced in the middle of the twentieth century has been seen as a civic necessity of any democracy, just as it has been a self-evident good in its outcomes.” Moyn seeks to disabuse anyone who holds that view.
Liberals and progressives, he says, “have little to lose and much to gain by leaving juristocracy to the enemies of democracy.” He starkly warns them: “The Supreme Court is Not Your Friend.”
Moyn repeated his concerns last month in testimony submitted to the Presidential Commission. Harvard’s Professor Bowie joined him in questioning the continuing appropriateness of judicial review of acts of Congress.
Bowie offered both historical and theoretical arguments in support of his contention that review of national legislation is deeply problematic. He urged the commission to recognize that the “power of federal courts to decline to enforce federal law has been inconsistent with the democratic ideal of political equality,” and to recommend reforms that would “make our courts more democratic.”
Liberals still enthralled with the Warren Court, Bowie argues, are oblivious to the long arc of the Supreme Court’s history. In fact, he writes, the Court regularly “has wielded an anti-democratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status.”
Taking a cold, hard look at the history of judicial review of federal legislation reveals, as Bowie observes, that “the principal ‘minority’ most often protected by the Court is the wealthy.” This should not be surprising given that Supreme Court Justices have themselves almost always come from the highest strata of American society.
Here Bowie repeats a warning sounded periodically by scholars and activists.
Such warnings were particularly intense in the period surrounding and immediately after the Supreme Court’s rulings declaring major aspects of FDR’s New Deal legislation to be unconstitutional. As the magisterial American historian Henry Steele Commager noted in his 1943 book, Majority Rule and Minority Rights, “the real battles of liberalism are not won in the Supreme Court.”
And, even if we could turn a blind eye to that lesson of our past, Bowie argues that “as a matter of political theory, the Court’s exercise of judicial review undermines the value that distinguishes democracy as an ideal form of government: its pursuit of political equality.”
The Court, he contends, is more like an overseer of the people than an umpire objectively considering fine points of law. “Most of the time, the Court gives Congress free rein to act as it pleases. But the Court remains in the saddle, ready to pull on the reins when Congress moves to disrupt hierarchies of wealth or status.”
Ironically, Moyn and Bowie addressed criticism of the Court’s elitism and anti-democratic qualities to a similarly elitist group, a commission composed solely of leading law professors and legal practitioners, many of whom clerked on the Supreme Court, who are themselves hardly representative of the American people.
They are a distinguished group made up of people of goodwill. But they seem to be an unlikely bunch, despite their impressive credentials and inside knowledge of the Court, to rock the boat by proposing fundamental, structural reforms of the kind Moyn and Bowie advocate.
Appointing blue-ribbon commissions is the usual Washington, DC, insider stuff. If the President really wants serious consideration of such reforms and if the Chief Justice really wants to address the issue of public confidence in the Court, they should listen to what ordinary Americans have to say.
What is needed on both fronts is a People’s Commission on the Supreme Court composed of citizens, activists, litigants, representatives of NGOs, and local officials, to offer a bottom-up, grassroots understanding of what needs to be done from those whose lives and rights are on the docket in every session of the Supreme Court.
It is one thing for the Supreme Court to review decisions by lower courts, and to see to it that their rulings are consistent with constitutional values and previous practice. It is another for the Court to tinker with the work of the Congress.
It is that tinkering that a commission by and for the people should focus on, seeking ways for the Court itself to conform to the democratic values on which our country was founded and which it ever seeks to embody. Only when the people’s voices are heard and when they are empowered to make recommendations for change can America expect a dialogue on the Court that is as democratic as Moyn and Bowie want the Court itself to be.