To Tame a Far-Right Supreme Court, Let’s Revive This Forgotten Proposal from 1922

As Amy Coney Barrett’s confirmation shows, the U.S. Supreme Court commands more power than it should, but we can put it in its place. And it’s been done before.

Leon Fink

Supreme Court Justice nominee Judge Amy Coney Barrett stands as she is sworn in during the Senate Judiciary Committee confirmation hearing for Supreme Court Justice in the Hart Senate Office Building on October 12, 2020 in Washington, DC. Photo by Shawn Thew-Pool via Getty Images

Who would have thought that in one of the world’s old­est democ­ra­cies, the life­time appoint­ment of a sin­gle jurist, to be decid­ed by a sim­ple sen­a­to­r­i­al major­i­ty, could rival in sig­nif­i­cance the deci­sion of more than 150 mil­lion cit­i­zens choos­ing their pres­i­dent at the bal­lot box? For lib­er­als and pro­gres­sives, the frus­tra­tion is pal­pa­ble, and ful­ly jus­ti­fied. Over the course of a few hours, ven­er­a­tion of Ruth Bad­er Gins­burg’s dis­tin­guished ser­vice to the nation was fol­lowed by trep­i­da­tion and a gnash­ing of teeth over Mitch McConnell’s deter­mi­na­tion to fill her place before the expi­ra­tion of Trump’s term. 

"any legislation that would expand health insurance, union rights, environmental regulation, as well as abortion access is likely in deep trouble."

The nom­i­na­tion of Antonin Scalia mentee Amy Coney Bar­rett fur­ther fanned the flames. Even as pub­lic opin­ion has clear­ly swung to the left on pol­i­cy issues over recent years — not only for Oba­macare-plus health cov­er­age but also in regard­ing a wealth tax and lim­its on pri­vate and cor­po­rate polit­i­cal con­tri­bu­tions — con­ser­v­a­tive con­trol of the judi­cia­ry, begin­ning with the Supreme Court, threat­ens to block or even to roll back any demo­c­ra­t­ic leg­isla­tive advance.

It is lit­tle solace that some lib­er­al legal experts, like Har­vard Law School’s Noah Feld­man who tes­ti­fied before the House Judi­cia­ry Com­mit­tee on behalf of Pres­i­dent Trump’s impeach­ment, not only excus­es but wel­comes a can­di­date like Bar­rett because she pass­es a mer­i­to­crat­ic test inter­nal to the legal pro­fes­sion. I dis­agree with much of her judi­cial phi­los­o­phy,” Feld­man wrote in Bloomberg on Sep­tem­ber 26, and expect to dis­agree with many, maybe even most, of her future votes and opin­ions. Yet despite this dis­agree­ment, I know her to be a bril­liant and con­sci­en­tious lawyer who will ana­lyze and decide cas­es in good faith, apply­ing the jurispru­den­tial prin­ci­ples to which she is committed.”

What are the like­ly out­comes of such think­ing for the Amer­i­can peo­ple? Chief Jus­tice John Roberts’ court already has cur­tailed the appli­ca­tion of pre­vi­ous vot­ing rights acts (Shel­by Coun­ty v. Hold­er), struck down restric­tions on the flow of cor­po­rate or unac­knowl­edged pri­vate fund­ing in polit­i­cal cam­paigns (Cit­i­zens Unit­ed), and denied the right of class action law­suits in the case of claims of wage theft from non-union work­ers (Epic Sys­tems Corp v. Lewis).

The nar­row­ly tex­tu­al­ist” and orig­i­nal­ist” prin­ci­ples to which Bar­rett sub­scribes, inevitably car­ry con­ser­v­a­tive polit­i­cal impli­ca­tions. From such a mind­set, any leg­is­la­tion that would expand health insur­ance, union rights, envi­ron­men­tal reg­u­la­tion, as well as abor­tion access is like­ly in deep trou­ble. For Feld­man, how­ev­er, Barrett’s views about how to inter­pret the law that I think are wrong and, in cer­tain respects, mis­guid­ed” are more than bal­anced by her being among the best and bright­est in her cohort. Ah, if only we could use the LSATs to choose all our fed­er­al officials!

What steps might a Demo­c­ra­t­ic Con­gress, take in 2021 to pro­tect the coun­try from a judi­cial super-major­i­ty defined by Jus­tices Roberts, Ali­to, Thomas, Gor­such, Kavanaugh, and Bar­rett? Most jour­nal­is­tic com­men­tary has cen­tered on court-pack­ing” ideas harken­ing back to Pres­i­dent Franklin Roosevelt’s ulti­mate­ly foiled attempt in 1937 to expand the court from nine to as many as fif­teen jus­tices to pre­vent its undo­ing his entire New Deal pro­gram. This was (and remains) a messy solu­tion, for it turns pub­lic scruti­ny from an unde­mo­c­ra­t­ic, reac­tionary judi­cial branch to a seem­ing­ly over­reach­ing exec­u­tive authority. 

In FDR’s case, his­to­ri­ans sug­gest, the mere threat of rad­i­cal judi­cial surgery proved enough to tem­per the impulse towards judi­cial review, and for decades the court large­ly refrained from coun­ter­mand­ing major eco­nom­ic law-mak­ing by state and fed­er­al leg­isla­tive majori­ties. On the oth­er hand, the bit­ter polit­i­cal after-taste from the court-pack­ing fight helped to fuel a Repub­li­can resur­gence in Con­gres­sion­al elec­tions to come.

But his­tor­i­cal antecedents to the court-pack­ing plan offer oth­er keys to a still-use­able past. By the 1920s, the Supreme Court had tru­ly become a bul­wark of cor­po­rate priv­i­lege, act­ing against lim­i­ta­tions on union black­list­ing in Kansas in 1915, over­turn­ing the fed­er­al child labor law in 1918, and throw­ing out a min­i­mum wage for women work­ers in Wash­ing­ton D.C. in 1923. Chief Jus­tice and ex-Pres­i­dent William Howard Taft (19211930) cheered on such moves by open­ly rail­ing against social­ist raids upon prop­er­ty rights.”

As the courts increas­ing­ly detached them­selves from pub­lic opin­ion on key issues of nation­al wel­fare, they came under increas­ing crit­i­cism from pro­gres­sive cir­cles. Indeed, with a focus on mis-use of injunc­tions and con­tempt cita­tions in labor dis­putes, Theodore Roosevelt’s Pro­gres­sive Par­ty in 1912 pri­or­i­tized restric­tion of the pow­er of the courts as shall leave to the peo­ple the ulti­mate author­i­ty to deter­mine fun­da­men­tal ques­tions of social wel­fare and pub­lic pol­i­cy.” The Social­ist Par­ty led by Eugene V. Debs went fur­ther, advo­cat­ing a con­sti­tu­tion­al amend­ment to abol­ish judi­cial review of leg­isla­tive acts altogether.

Two tan­gi­ble nation­al reform ideas fol­lowed in the next decade. As doc­u­ment­ed by his­to­ri­an Steven F. Law­son, Wisconsin’s Pro­gres­sive Sen­a­tor Robert Fight­ing Bob” La Fol­lette intro­duced a con­sti­tu­tion­al amend­ment in 1922 (nev­er put to a Con­gres­sion­al vote) where­by Con­gress would have the right to re-enact –and thus enact for good — any law ruled uncon­sti­tu­tion­al by the Supreme Court. In the same year, Repub­li­can Sen. William Borah of Ida­ho pro­posed a dif­fer­ent reform tack: hop­ing to restrict judi­cial review to only the most egre­gious vio­la­tions of indi­vid­ual rights, his plan required any judi­cial over­ride by the Supreme Court to car­ry at min­i­mum a 7 to 2 court majority.

Beyond grap­pling with a sin­gle Supreme Court appoint­ment, it behooves today’s pro­gres­sives to chal­lenge all those still infect­ed by what the emi­nent judi­cial biog­ra­ph­er Alpheus Mason in 1958 labeled the cult of the judi­cial robe.” As La Fol­lette apt­ly warned, “[Should the Court keep] the final and con­clu­sive author­i­ty to deter­mine what laws Con­gress may pass, then, obvi­ous­ly, the Court is the real ruler of the coun­try exact­ly the same as the absolute King would be.” 

Should Amy Coney Bar­rett suc­ceed to the Supreme Court and the Democ­rats retake the Sen­ate in the Novem­ber elec­tions, the New Demo­c­ra­t­ic Con­gress should quick­ly pass a cam­paign finance act on the order of what was over­turned by the Cit­i­zens Unit­ed deci­sion. That will set up a test — as was the Nation­al Labor Rela­tions Act for the New Deal­ers — of whether the Court had learned its prop­er demo­c­ra­t­ic lesson. 

If the Court again asserts its dom­i­nance over the nature of our elec­toral sys­tem by over­turn­ing such a law, then Con­gress should move to Sen. Borah’s revised-court-major­i­ty idea. Such a change would by itself take the sting from a right-wing major­i­ty. If and when the Court also rules such an act uncon­sti­tu­tion­al, then it is sure­ly time to take FDR’s court-pack­ing plan out of mothballs.

Leon Fink is the author of The Long Gild­ed Age: Amer­i­can Cap­i­tal­ism and the Lessons of a New World Order (2015) and edi­tor of the jour­nal Labor: Stud­ies in Work­ing-Class His­to­ry.
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