How To Fight A Politicized Supreme Court The American Way TPM
By Joseph Fishkin
April 6, 2020 10:11 a.m.
Many smart progressives today argue for various plans aimed at depoliticizing the Supreme Court, often through elaborate and difficult-to-enact schemes that involve changing how the court is constituted and how each justice is appointed. One oddity of these reform schemes is that if you had the political power to enact one of them (i.e. the White House, supermajorities in Congress, and, in some cases, enough state legislatures to ratify an Amendment), you’d likely also have the power to do simpler stuff, such as appoint better justices to the Court.
But there is a deeper and more interesting problem. Depoliticization schemes aim to make the Court something it has never been. The Court is no umpire, standing apart from politics. Instead, it has always been engaged in what scholars sometimes call “high politics” or constitutional politics. The lesson of the first 150 years of American history is that when you believe the Court is profoundly wrong, you don’t fix the Court through depoliticizing reforms. You confront the Court through politics. When the Court is far enough out of step with Congress, the President, and the American people, the elected branches can use a range of constitutional hardball tactics to induce the Court to change direction. These begin with fights about who should be on the Court, but they don’t end there. It’s worth knowing this history because we may soon need to dust off the rest of the playbook.
I.
The framers of the Constitution envisioned a politics without political parties. The collapse of this vision was almost comically instantaneous. By the election of 1800, the first two parties were at each other’s throats, fighting for (among other things) control of the courts. President John Adams and his Federalist party lost the election, but attempted to entrench their allies in the federal judiciary through two techniques that became time-honored American strategies of court-packing. First, a lame-duck session in early 1801, the Federalist majority in Congress created many new federal judgeships, which Adams quickly filled (the “midnight judges”). Second, they adjusted the size of the Supreme Court — downward, from six members to five (effective on the retirement of any of the existing six) — in what turned out to be a futile attempt to block incoming President Thomas Jefferson from appointing anybody to the Court.
[link:https://talkingpointsmemo.com/cafe/how-to-fight-a-politicized-supreme-court-the-american-way|
More in this series at TPM https://talkingpointsmemo.com/edblog/the-growing-power-imbalance
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