With the landmark Dobbs v. Jackson Women’s Health decision and the dismantling of the national abortion regime created under Roe v. Wade in 1973, progressives are angry. Abortion has become a core commitment in their ideological universe, so much so that even though a young Sen. Joe Biden criticized Roe when it came out, now-President Biden must denounce Dobbs as dangerous extremism.
In response, many progressive Democrats are calling for radical solutions. The left wing wants to abolish the filibuster in the Senate (thereby depriving the Republican caucus from blocking legislation), expand the number of seats on the Supreme Court, and fill those new vacancies with progressives who will undo Dobbs as well as many decisions the court has made over the last decade.
This is a terrible idea, premised on a naive understanding of the historical role of the judiciary in American political life. Packing the court would turn the judiciary into another political branch and undermine its ability to give meaning to the Constitution. Without the power of the court to create uniform constitutional doctrines, states would fill in the gaps, and red states no doubt would adopt principles that progressives would find noxious. The result would be a radical and potentially destabilizing transformation of our system of government. Instead of changing the structure of the court, progressives should do what conservatives have done, working through existing political institutions to alter its composition.
While today, the Supreme Court is widely acknowledged to have the power to give final meaning to the Constitution, this authority is not obvious on a plain reading of the document. Yes, Article III gives the court the authority to rule in “all Cases, in Law and Equity, arising under this Constitution.” That certainly means it gets a say, but the final say? That is not at all clear.
In fact, the question of how the Constitution should be understood was contested for much of our early history. George Washington, for instance, took it upon himself in 1791 to determine whether Alexander Hamilton’s proposal for the Bank of the United States was consistent with the necessary and proper clause. And when Thomas Jefferson and James Madison fought against the Sedition Act of 1798, a law that effectively criminalized criticism of the government, they never thought once of going to court. Instead, they went to the states to register their complaints, with Jefferson going so far as to suggest that the states had the power to overturn illegal federal acts.
In 1804, John Marshall established the court as the arbiter of constitutional meaning in Marbury v. Madison. That judgment was political, at least in part: With Marshall caught between a Federalist plaintiff and Republican administration looking to curb the power of its political opposition, Marshall (himself a Federalist) ruled with the Republicans through a neat trick, striking down an otherwise obscure portion of the Judiciary Act of 1789. A less politically astute chief would no doubt have missed the opportunity, and the role of the court in our nation’s history would have been quite different.
Marshall’s assertion of the court’s role in deciding the meaning of the Constitution was not self-legitimizing. If he had decided against the Republicans on an important issue in the next 20 years, he probably would have been ignored. Wisely, he never again struck down another federal law, instead focusing on establishing the supremacy of the federal government over the states.
Still, he drew grumbles. In McCulloch v. Maryland, the court declared the creation of the Bank of the United States to have been a legitimate federal act. But Madison, who by that point had retired from public life, privately complained about Marshall using Hamiltonian theories to arrive at that conclusion. More significantly, in Worcester v. Georgia, the Supreme Court ruled against the state of Georgia for the Cherokee Indians. President Andrew Jackson was unimpressed. “John Marshall has made his decision,” he was said to have replied, “now let him enforce it” — underscoring the point that the court, lacking both the taxing power and police power, must rely on the assent of the other branches.
Indeed, Jackson’s crony Roger Taney, named by the president to replace Marshall as chief justice, inadvertently demonstrated the limits of court power when he promulgated the Dred Scott decision in 1857, which effectively legalized slavery throughout the nation. During the Lincoln-Douglas Debates in 1858, Illinois Republican Abraham Lincoln pushed Democrat Stephen Douglas into rejecting the legitimacy of Dred Scott, and by implication questioning the power of the court. Were it not for the Civil War, the court’s role as the steward of the Constitution might have been lost. In the 20th century, the court’s reputation was again threatened by its staunch opposition to the New Deal, which might very well have resulted in a constitutional crisis had the court not changed course in the mid-1930s, determining that the main parts of Franklin Roosevelt’s legislative agenda were indeed legitimate.
The upshot of this history lesson is that while the court’s independence from the political process is real, it is limited. Of course, judges are independent, with life tenure and guaranteed salaries, thus freeing them to make a presumably impartial decision in a specific dispute. But insofar as the court seeks to go beyond that, to apply an authoritative interpretation to the Constitution, it is inevitably entangled in politics. It needs the support of the political branches, on both the state and federal level, to effectuate those judgments.
Progressives are aware of this at least on some level. They have been warning the Roberts court for years that, should it rule with conservatives on hot-button issues such as gun control, campaign finance, and especially abortion, it risks its legitimacy. Yet it’s pretty clear that they have not thought through how packing the court would destroy its legitimacy altogether. If the court was transformed into a mere creature of a Democratic majority in Congress, why would Republican governments in the states listen to anything it has to say? And if, once Republicans retook Congress, they packed the court once more, why would Democratic governments in the states obey the court?
These are gravely serious questions. As the branch without “force or will,” as Hamilton put it in Federalist 78, the court depends upon the rest of the government to abide by its rulings. The president and state governors must agree to enforce its rulings. They, in turn, depend upon legislative assent to do so, for it is Congress and the state legislatures that raise the taxes needed to fund enforcement. If even a subset of these political units refuses to respect the decisions of the court, there is nothing the judiciary can do about it — hence Jackson’s quip about Marshall.
Lest we think this is impossible, something like this has occurred in the last 100 years. Brown v. Board of Education was a landmark of Supreme Court jurisprudence, overturning Plessy v. Ferguson on the issue of whether segregation was legitimate in public facilities. But it took the court decades to chase down obstreperous school districts to force them into compliance. Even then, the segregationists were at least genuflecting to the court, dragging their heels while maintaining that they were doing as they were told. There was likewise a temporary refusal by a handful of county clerks to provide marriage certificates to homosexual couples in the wake of Obergefell v. Hodges, which created a constitutional right to gay marriage. Imagine a situation in which, with its legitimacy as an impartial arbiter shattered, a court packed with progressive justices mandates that states such as Mississippi, Alabama, Missouri, or North Dakota follow its guidelines on abortion. One can very easily imagine the response of those states: Elena Kagan has made her decision, now let her enforce it.
Not only would this post-judicial review world not yield a victory on abortion for the Left, but it would create chaos. One can scarcely imagine what would happen to the country if the Constitution meant different things in different places. The framers may not have intended the Supreme Court to have the final say in the Constitution, but this power is now deeply entrenched in our body politic. There is no way to root it out without unintended, unpredictable, and inevitably unfortunate side effects.
Instead of assaulting a foundational institution of American republicanism, progressives might take a page from the conservative playbook. After what the Right considered the disasters of the Warren and Berger courts, conservatives organized, strategized, and above all acted within the existing rules to effect the change they wanted. Progressives, meanwhile, have taken the court for granted, or at least underestimated the political craftsmanship of conservatives. That’s how the Right won. The Left should try it.
Jay Cost is a visiting fellow at the American Enterprise Institute and a visiting scholar at Grove City College.
