Rule of Law, Democracy, and the Supreme Court—Thinking about Court Reform
In itself the rule of law is a good thing, but totally by itself its goodness is quite limited. Governance by public rules makes life somewhat predictable, social coordination more possible, and a narrow dimension of equality real. But if the laws are neither democratic in origin nor effect, the restricted intrinsic goods of rule of law are fully compatible with tyranny and injustice broadly conceived.
The very phrase “rule of law,” is misleading—suggesting either that laws themselves are magistrates enforcing their unchanging wills, or that they are natural regularities, like gravity, from which there can be no escape. Western religion, in which God’s eternal will is law, is a version of the former, the krama/dharma conceptions of eastern religion a version of the later. But if we put aside religious metaphysics (which in this realm is usually a cover for clerical rule), we see that the “rule of law” is the rule of lawmakers, law interpreters, and law enforcers. If their roles in lawmaking are not justified, “the rule of law” loses most of its virtue, and becomes a euphemism for “the rule of the powerful.” Most of us believe that the justification for the entitlement to make laws must come from the consent of the governed.
So how stands it with the current Supreme Court of the United States (Scotus)?
The processes that anoint Scotus justices were established in the 18th century without the consent of the large majority of 18th century Americans. Assuming Barrett is confirmed, the three youngest justices will have been nominated by a president who lost the popular vote, and confirmed by a body, the Senate, that represents a minority of Americans. For 28 years Republicans have only once won the popular vote for the presidency, yet upon Barrett’s confirmation 6 of the 9 justices will be Republican appointees. Even if one held that the unrepresentativeness of the current Senate and President was a fluke in an otherwise usually democratic process, the present Court can endure for decades, and it is empowered to ensure that the “fluky” unrepresentativeness of the moment becomes a permanent feature of American government. Scotus can make lawful as much voter-suppression as it chooses to, it can block all attempts to reform the Senate or the Electoral College --- indeed it can rule to deepen the undemocratic nature of the bodies from which justices are appointed. A rulebook in the hands of shameless umpires, whose interpretations of the rules are unfettered by anything external to themselves, can determine the outcome of any contest however they want. Scotus can perpetuate its own power without ever touching down for genuine democratic endorsement.
It is no use to say the justices cannot do these things lawfully, because we have developed a political tradition that gives them final say on what counts as lawful. They can declare any attempt to limit their power unlawful. Nor can we assert (as Republicans at the Barrett hearings disingenuously did) that, because cases must be brought to it, Scotus can only settle disputes, not make law. In reality, for any law a majority of justices might be inclined to declare unconstitutional or constitutionally required a case can and will be generated. Combined with a fealty to the rule of law as an overriding ideal regardless of context, giving the justices the final word on what the law is, including the laws leading to their appointments, tenure, and jurisdiction, is a formula for unending oligarchy.
The only constraint on Scotus’ power is the capacity of institutions and individuals to withdraw legitimacy to its unrestricted right to pronounce on lawfulness. In the American historical context this would be a radical act, rife with uncertainty, and opening the potential for unembarrassed, unprincipled power to dominate government without the modifying effects of a stable structure of legitimacy and at least a pretense to principle. It might lead to economic chaos and violent civil disorder. But it is a risk worth taking if it is the only way to salvage democracy and the possibility of social equality.
Even if this Court proved less shameless than the contemporary Republican party, and backed off abusing its power, it is dangerous to leave Scotus’ anti-democratic potential intact. If a Biden administration and a Democratic congress gain control of government, it should use the opportunity to reform the Court, but in a way that has a chance of being viewed by most institutions and people as lawful (whether or not the Court concurs). The reforms should, of course, still insulate the Court from passing popular whims, prejudices, and passions—but it must make it ultimately democratically accountable.
Democratic accountability, indeed, should be the entire purpose of the reforms. The reforms acceptance depends on them not being viewed as merely a liberal power grab. A rebalancing of this Court away from extreme right-wing views might be a welcome side-effect of the reforms, but should not be the goal of the reforms. Although there have been moments of dramatic action by Scotus to advance freedom and equality, it is structurally biased to be conservative and on a whole the historical record testifies to that inclination. Regularly elected politicians, more immediately subject to the pressures of social movements, are better instruments for curbing corporate power, protecting labor, and expanding and ensuring personal and civic rights. Of course, the institutions that select and empower those politicians must themselves be democratic—but their reform requires a democratically committed Court. The primary goal of Court reform should be to give Congress and the President the legal space to legislate campaign finance reform, outlaw gerrymandering, eliminate the Electoral College, outlaw voter suppression, and diminish the unrepresentative nature of the Senate.
Overcoming undemocratic structures is a necessary if not sufficient step toward a more democratic society. A good, probably brief, political climate for taking that step may be upon us. We ought not hesitate to move. Timidly playing it safe—surely Biden’s instinct—must be countered by a sense that short-term safe-playing is a long-term grave danger. Of course, reformed structures, however helpful, guarantee nothing. Without deeply engrained, ubiquitous norms, democracy is doomed to wither. At bottom we depend on education and enculturation. Reform of Scotus can reinforce the idea that legitimacy is grounded in the consent of the governed to governing processes, if not to all immediate policies. If we are fortunate enough to have a a non-Republican president, Senate and House in 2021, a political-educational campaign aimed at Scotus reform for the sake of democracy must be among its very highest priorities.