The Supreme Court is the highest court of the United States. Before we get to the books, tell us what’s headlining: Tell us about the American judicial system, please.
The Supreme Court sits at the apex of two parallel systems: a federal court system and a state court system. If a state court is interpreting a federal statute or the federal constitution and the supreme court thinks it is wrong, the supreme court can review the state court’s decision. all other federal courts cannot review state court decisions. therefore, if someone files an antitrust claim under a federal statute, she will generally file that claim in federal court; If someone is suing for an injury sustained during a car accident, she will generally file that claim in state court. the United States. the constitution only creates one federal court, which is the supreme court. but it does authorize congress to create a system of lower federal courts, which congress did at its first meeting in 1789. the supreme court does not have the authority to interpret state law, it leaves that to the state courts. but if there is a federal constitutional challenge to a state law, then the supreme court can review it, as it is at the apex of the system for reviewing cases that come in federal courts and state courts.
You are reading: Best books on supreme court history
the supreme court is the final arbiter of what the constitution means. But you lay bare the “indeterminacy of constitutional law” in your Bancroft Award-winning book, From Jim Crow to Civil Rights.
That book outlines the Supreme Court’s contributions to the issue of racial equality and racial justice from the Civil War to the Civil Rights movement. there are a few different themes in the book. one of them is that constitutional phrases like “equal protection” do not carry an enormous amount of determination. furthermore, the judges disagree on the proper methodology of interpretation. Judicial precedents can be narrowly or broadly interpreted or overridden, meaning that judges have quite a bit of discretion in how they interpret the constitution. In the book, I argue that the Supreme Court, to a significant degree, is a reflection of the cultural and historical moment in which judges operate.
for example, in 1896, the court upheld racial segregation, in plessy v. Ferguson, at a time when most white Americans supported white supremacy. But then, after World War II, the country was reviewing its views on race, partly as a result of the war against Nazi fascism, partly because of the role of black soldiers in the war, partly because the united states was fighting the soviet union for the hearts and minds of the third world, who had different views on race. By the time the court decided Brown v. Board of Education in 1954, American race relations were changing, which made it possible for the Supreme Court to decide Brown the way it did.
“Judicial decisions can sometimes make issues stand out…they can energize both supporters and opponents.”
we can also see how the court reflects the current cultural moment. The Supreme Court recently held that same-sex marriage was constitutionally protected. the judges would never have done that 30 years ago. Most Americans couldn’t have conceived of the idea that there was a constitutional right to same-sex marriage 30 years ago, but society changes, popular customs change, and the Supreme Court is no stranger to it. last term, even two of the conservative justices joined in ruling that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, also prohibits discrimination based on sexual orientation and employment status. transgender. that is from judges who pretend not to be very activists. therefore, the law is sufficiently indeterminate that it can be interpreted in a way that reflects changing customs.
You continue to explore the connection between the court and public opinion from the closet to the altar, right?
I was interested in the phenomenon of judicial decisions that are put in front of public opinion and produce a negative reaction. brown vs. the board of education decided on the issue of school segregation in a country that was divided down the middle. But the South was not divided down the middle, and the court’s decision produced a dramatic political backlash, radicalizing Southern politics, creating a climate for violence, and leading Southern states to massively resist the decision. he can argue that the court’s death penalty decisions and his abortion decision had similar effects.
That’s largely what happened with gay marriage. A Hawaii decision in the early 1990s sparked a backlash and the passage of the Defense of Marriage Act. Then there was the Massachusetts decision, in 2003, that led to George W. bush to run for re-election on a platform supporting a constitutional amendment to ban gay marriage. I was interested in that dynamic, how judicial decisions can sometimes make issues stand out, how they can energize both supporters and opponents. then the supreme court in 2015, a bit late in the game, decided to settle the issue for the country; the judges waited long enough that there was no significant backlash to that decision, though there was some. I would argue that part of the reason Donald Trump won the support of 81% of white evangelicals in 2016 is because the gay marriage decision crystallized his perception that the nation was moving away from its traditional Christian roots. So, they supported a president who promised to appoint anti-abortion judges and reinforced their feeling that Christianity was under attack.
let’s move on to your book options. Let’s first look at the classic treatment of the subject, now in its sixth edition. tell me about robert g. mccloskey is the american supreme court.
mccloskey was a harvard political scientist who wrote this book around 1960. before, the best constitutional history was written by political scientists and government scholars. now, most of the people who write the best constitutional history are in law schools. but there has also been a great change in law schools in the last 40 years. many of my colleagues have doctorates in government or history. people who 50 years ago would have been writing legal history books in government departments are now writing them in law schools. however, someone who has earned a Ph.D. in government or political science has a different approach than someone who trained only in law. In any case, McCloskey was a brilliant court scholar.
What I love about the book is that it places the Supreme Court in its larger political and social context. he sees the court as a creature of his time and as a political institution, which is the approach I lean towards. he is not so interested in legal doctrine, that is, the rules that the courts make to interpret the statutes or the constitution, for a free speech case or an equal protection case. I don’t think those doctrines really determine outcomes in particular cases and neither does mccloskey.
“It is not unusual for a judicial decision that goes too far beyond what public opinion will accept to produce a negative reaction. the judges are aware of it”
is more interested in things like the way the great john marshall, chief justice for 34 years in the early 19th century, writes his nationalism into the constitution. And how does the court under Chief Justice Roger Taney rule in favor of slavery? And what are the political implications of those rulings? he looks at the court’s contributions to American history through that lens. He also focuses on the court during the ‘Lochner era’, the first decades of the 20th century, when the Supreme Court struck down economic regulation, and talks about the court’s crisis over the new deal.
when i have ll.m. (Master of Laws) students, who are usually from other countries, take my constitutional law class or one of my constitutional history classes, I always suggest this book as reference reading. It has been brought up to date by another eminent constitutional law scholar, Sanford Levinson. but even the 1960 edition is useful for getting into the US Supreme Court and its history.
The United States has a three-branch system of government. the executive, legislative, and judicial branches were designed to be co-equal. What happens when the supreme court, which sits at the top of the judicial system, is out of step with the other branches of government?
mccloskey sees the supreme court, as political scientists do, as part of a three-branch system of government. If the Supreme Court goes too far in challenging Congress, Congress has several weapons to use against the Supreme Court. judges are well aware of this. So during Reconstruction in the 1860s and 1870s, Congress was at loggerheads with what Republicans thought was a hostile Supreme Court that could strike down their Reconstruction legislation. then congress took away the court’s jurisdiction in a case that had already been discussed. Reconstruction-era supreme court justices were intimidated and backed down. that also happened in 1937.
I think we’re again entering an era where if the court engages in too conservative policy making, the liberals could retaliate by expanding the size of the court, which is something the Democrats are starting from to speak quite actively for the first time. time in many decades.
let’s turn to a biography, john marshall and the heroic age of the supreme court by r. kent newmyer. tell us.
kent newmyer is a great judicial biographer who wrote what i think many people would consider to be the best judicial biography, the joseph story biography. this is my favorite among the many marshall biographies. I lean toward books that take the same approach as I do, which is to put judges in context, not suggesting that they are somehow neutral interpreters of the law, but rather acknowledging that they reflect their own experiences and reflect the times. period in which they exist.
Before becoming chief justice, john marshall was a virginia politician and participated in the 1788 virginia convention that ratified the constitution. He was a leading commercial lawyer in Richmond during the 1790s, later serving a term in Congress. but he made a name for himself in that term, defending the policies of the Federalist party. a big part of what he is famous for is reading nationalism into the constitution. decisions such as mcculloch v. maryland, in 1819, defended the constitutionality of the second bank of the united states and established a very broad reading of the power of congress. In his home state of Virginia, the Richmond newspapers criticized the decision. Marshall responded under a pseudonym in essays defending his decision.
newmyer talks about the origin of this nationalism. Marshall had been a soldier during the Revolutionary War and, like many participants in it, emerged with a highly nationalistic bent, in part because the soldiers had risked their lives to build a nation and also because one of the obstacles to the success of the war was the obstinacy and obstructionism of the states. that made them inclined to support nationalism over states’ rights. Marshall also presided over a federalist court, that is, a court that shared the federalist philosophy of john adams and alexander hamilton, at a time when political opposition to that philosophy was mounting. to survive the Jeffersonian era and then the Jacksonian era, he becomes a political strategist. Marshall tries to decide the cases without provoking political opponents, who could destroy him. McCulloch helps us understand how John Marshall wrote his philosophy into the constitution strategically so that he would not be overwhelmed by political opposition.
See Also: Alyson Noel – Book Series In Order
You have insisted on a two-for-one deal, naming a second Newmyer book, Supreme Court Justice Joseph Story: Statesman of the Old Republic, as part of your first choice. Why is this book essential? what does the history of justice teach us about the history of the supreme court?
history was another judge who served for 30 years; He was appointed in 1812 and served until 1845. He and Marshall were allies at court. he was an extreme nationalist. In part that’s a reflection of his New England roots; New England is where the Federalists were especially strong. history was a brilliant lawyer. He is one of the founders of the Harvard Law School. He taught at Harvard Law School. Some of the most interesting issues related to his time at court are the issues of slavery. history, like most people in massachusetts, was anti-slavery. he was responsible for deciding many cases involving slavery. As a judge who was personally opposed to slavery, he was faced with the problem that the constitution was clearly pro-slavery.
story wrote the court’s opinion in an 1842 case called prigg v. If history were to say that the federal fugitive slave law was unconstitutional or that Pennsylvania law somehow outlasted the federal statute, there is a good chance southern slave owners would simply leave the union. so you are trying to balance conflicting interests. his dilemma raises really deep questions about what a judge is supposed to do when the law offends his moral views. he writes a very interesting opinion. that’s just a small part of the book.
story was very active in all kinds of areas of law. He also served when South Carolina threatened to overturn the federal tariff in the early 1830s. There is a long correspondence between John Marshall and President Andrew Jackson. Story and Marshall were very pessimistic about the state of the union in the early 1830s. They were deeply opposed to Andrew Jackson and his policies. so there’s a lot of fascinating correspondence and extrajudicial writing per story. he also wrote the history of the most distinguished commentaries on the constitution of that time. newmyer also explores all of that. it’s a fabulous biography, judicial biography at its finest.
the dred scott case of don fehrenbacher, who won a pulitzer, is your next pick.
dred scott is one of the most infamous decisions in American constitutional history. don fehrenbacher, who was a historian at stanford, gets a fascinating 600 pages out of it. The question was whether Congress could ban slavery in the federal territories. In 1787, Congress passed the Northwest Ordinance, which outlawed slavery in the Northwest Territory of the United States, the area that later became Ohio, Illinois, Indiana, etc. missouri compromise, the fight for the kansas-nebraska act in 1854. then you get to dred scott in 1857.
an army doctor, who started in missouri and spent time in illinois and minnesota territory, considered himself the owner of dred scott. when the doctor returns to missouri, the abolitionists in st. Louis learns of the fact that Dred Scott has been taken to jurisdictions where slavery is prohibited. they bring a lawsuit, which works its way through the state courts. The lawsuit then makes its way through the federal courts to the supreme court. at the time, many feared that the five southern justices would split from the northern justices in a way that would divide the country. Fehrenbacher reveals the detailed inside story of how President James Buchanan tries to get the justices to write an opinion that doesn’t reflect his regional divide. he has the justices reveal what the decision will say, so when he writes his inaugural address, which is delivered just before the dred scott decision is issued, he asks the nation to join the supreme court .
then fehrenbacher is faced with the question of the impact of the decision. Some people think that Dred Scott helped cause the Civil War. discuss what exactly happens after dred scott; watch the state elections to find out if dred scott helped the republican party. Does it produce a backlash that leads to the election of Lincoln? it is 600 pages of brilliant legal and political history. dred scott is often considered the most egregious decision in american constitutional history. yet most Americans, ironically, almost certainly agreed with her when she decided. it’s only with the help of hindsight that it looks like an abomination.
dred scott was the first time the supreme court invalidated a major federal law. his work highlights the “unpredictable consequences of supreme court decision-making”. Do judges consider consequences when considering a case? please give us other main examples of the unpredictable consequences of decisions.
judges always think about those things, although most would publicly deny it. Chief Justice Taney clearly believed that he was doing the country a service by addressing the issue of slavery in the territories, which was literally too controversial for Congress. congress couldn’t figure it out because the south tended to control the senate and the north tended to control the house, so congress was at an impasse in 1849-1850, over what to do about slavery in territory that had been Acquired in the war with Mexico. So Chief Justice Taney thought he was taking a hot topic off the table and uniting the country by taking on Dred Scott.
“dred scott is one of the most infamous decisions in American constitutional history”
They do that kind of thing all the time. That’s what the Supreme Court tried to do in the 1992 Casey abortion case, where the plurality opinion clearly says, “We are calling on the nation to come together and respect our decision on abortion.” an inch away from striking down the affordable health care law, but we know that chief justice roberts chickened out at the last moment by striking down what was arguably the most important national piece of legislation since the 1960s in the middle of a presidential election. Other examples include Bakke, the famous affirmative action case in 1978. Four justices wanted to overturn affirmative action and four justices wanted to uphold affirmative action. Justice Powell was the swing vote. he split the difference. he said that some forms of affirmative action are okay, but what the university of california davis has done here is not okay. these decisions pretend to be legal, but they are statesmen’s efforts to split the difference between the two sides.
As for the unpredictable consequences of decisions, in 1972 five judges clearly thought they were invalidating the death penalty. they were shocked when 35 states passed new death penalty laws in the next four years. and public opinion polls showed dramatically higher support for capital punishment. four years later, the court agreed to allow some forms of death penalty statutes and not others. it is not unusual for a court decision that goes too far beyond what public opinion will accept to produce a backlash. the judges are aware of this. Although they would deny that this is a legitimate thing to consider, they do it all the time.
simple justice by richard kluger is next. please tell me about it.
if I had to recommend a book on law or the supreme court, this is the book I would choose. kluger is a journalist; As far as I know, he doesn’t have a legal education. he decided to write the definitive history of the brown vs. the board of education and wrote an exciting and gripping story. brown started as five cases; he returns to each of the five locations to tell the story of the litigation. a lot of people know what the supreme court did with its 1954 brown decision, but they don’t know how the case got there.
litigation in virginia began with black students in prince edward county, which is a county where slavery was widespread and where black children were probably more than 50% of the school population around 1950. these children did not have bus transportation, while whites did, and their schools were dilapidated, while white students had fancy new schools with modern conveniences. then black kids decided to strike for equal funding; they did not require integration. The NAACP (National Association for the Advancement of Colored People) got wind of this. the naacp told them, ‘we’re not interested in bringing cases just to achieve material equality, we want integration,’ so it’s an example of how the heroic kids were at the forefront on this issue. kluger is such a good storyteller that the courage of these kids jumps off the page.
He also writes the story from inside the supreme court, and it turns out to be a fascinating inside story, one that is well preserved in the memos between the justices and the justices’ conference notes on their deliberations. I’ll give you an example from the book. The case was first discussed in December 1952. The judges had real doubts about what to do. Kluger retrieves their conversations in some detail, using his notes from the conference, and captures the debate using memos between the judges and memos from the court clerks. They ended up putting the case on a new argument, then the Chief Justice dies and President Eisenhower chooses a new boss: Earl Warren, who was the Governor of California. He goes through all of this and it reads like a novel, but it’s about the biggest court case in the history of the United States. Kluger’s book is now 45 years old, but it’s still incredibly valuable.
You mentioned the transition of chief justices during brown. Supreme Court history tends to be taught as a series of eras, known by the surnames of the Chief Justices of each period. Under this approach, Brown decided during the Warren Court. can you explain how this works? Why do we see the courts dominated by their bosses? Does that conceptualization lead to misunderstandings about how the Supreme Court actually works? Does this historiographic approach shape the role of the court in our country?
This is probably a misleading way of thinking about court. there is no reason to think that a particular chief justice represents the court and there is no reason to think that the appointment of a chief justice at a particular time will change the nature of the court’s jurisprudence. it is true that chief justice earl warren left in 1969 and another liberal justice, abe fortas, left that same year. Nixon was able to appoint a new chief justice and several additional conservative justices within a few years. that fundamentally changed the nature of the supreme court. Therefore, it is probably correct to view the change from Warren Court to Burger Court as quite significant, but it is due not so much to changes in bosses as to the fact that Nixon won four appointments during his first term. .
john marshall was different. he presided over the court for 34 years. he was a very powerful leader and was quite deliberate in exercising his authority to produce unity at court. That’s partly a reflection of the weakness of the Marshall Court, because it was a Federalist court operating during a Jeffersonian and Jacksonian era. Marshall understood that the court needed to speak with a united voice, so he would ride above the other justices. at that time they all lived together. When they decided cases, they lived together in a boarding house in Washington. They dined together, drank a lot of Marshall port together. Marshall insisted that there would be an opinion for the court and, in most cases, he wrote it. he discouraged dissenting and concurring opinions. so it really was court marshall.
Other chief justices really didn’t wield as much influence. They were just one vote. it is not that the chief justice gets two votes or has any coercive influence over the other justices. so I think it’s analogous to how we encapsulate events in decades. we think of the 60s, we think of the 80s, the 90s, the 20s. It’s a tricky but convenient way to think about history.
Do you think there is any impact on the judges themselves? For example, he said Chief Justice Roberts regretted gutting Obamacare in part because he didn’t want to be known for striking down such important legislation.
there are two different ways roberts can think about this differently than just another associate justice does. Roberts, because he’s the boss, he’s probably a little more attentive to the stature of the institution. something about being boss may lead you to think more about protecting the institution from political retaliation, if the court does things that are too provocative. Chief Justice Hughes clearly did that in 1937, when the court was faced with the threat of packing the court.
See Also: Top 10 books about the British in India | Books | The Guardian
The other thing is, and Roberts has said this in speeches, that Roger Taney’s reputation was destroyed as a result of a decision, Dred Scott. Roger Taney was a brilliant politician and a beloved judge, but being on the wrong side of history, there has always been a black mark next to his name. remember, most americans would have agreed with dred scott’s decision in 1857, but eight years from now there was a civil war and slavery was abolished and that didn’t make his opinion of dred scott look too good . Roberts has said that he doesn’t want what happened to Taney to happen to him. so I’m sure he was thinking of that in the case here. I’m sure he was thinking of that when he was the fifth vote for Liberals in the census case.
That is not the same as the institutional stature of the court, it is a matter of your own personal reputation. But because Americans think of the court as being represented by the chief justice, that means the chief’s personal reputation and the court’s institutional stature are conflated in a way they may not be for other judges. so of the six conservatives that will be on the court, once judge amy coney barrett is confirmed, chief justice roberts is the one who’s going to think the most about trying to hold the court together, trying to control the other conservatives. She clearly made that last term in the way the justices resolved Trump’s tax-related cases.
chief justices are supposed to keep the court together when they can. earl warren did that with brown. Chief Justice Burger tried to do just that in the school desegregation case that arose early in his term. His court was also unanimous in the case in deciding that Nixon had to hand over the Oval Office tapes to him. if anyone is going to hold the court together, the chief justice is the one most likely to try and perhaps the most effective at doing it.
if i remember correctly, chief justice roberts spoke about judicial independence in response to president trump trolling judges.
yes. President Trump dismissed the judges who overturned an iteration of his Muslim travel ban as “Judges Obama,” and Roberts replied, “We don’t have Judges Obama or Judges Trump, Judges Bush or Judges Clinton.” it was an effort to defend the lower federal courts from attacks by the president. Ironically, this is a statement that Trump has made, perhaps in his lifetime, that is true. there are judges obama and judges trump. judges are influenced by their political ideology. that’s true of supreme court justices, who split five to four today on every major issue along political lines.
but trump was wrong to attack the independence of judges because the independence of judges is fundamental to the rule of law. much of what the supreme court does has nothing to do with high-profile cases like abortion and affirmative action. judges are responsible for deciding ordinary contract cases and criminal cases. and a society that doesn’t have independent judges who can stand up to a president with authoritarian leanings like trump, who constantly tries to interfere in criminal proceedings involving his political allies, like roger stone and michael flynn, that’s not a society that lives up to the rule of law, that is a society that has already moved dangerously far in an authoritarian direction. so it’s one thing to recognize that supreme court justices and all judges are influenced by their personal ideologies, it’s another thing to attack the judge and jury in the roger stone trial, which is what authoritarians do and what which is almost inconceivable one of our presidents could do, without almost a word of objection from his party.
Finally, the biography of John Jeffries, Judge Lewis F. powell, jr.
John Jeffries, my former colleague and friend, was Judge Powell’s law clerk in the early 1970s. He wrote one of the best court biographies of all time on Powell. Powell was one of the most influential justices in the history of the Supreme Court. he was a very intelligent man, former president of the american bar association. but his influence was mainly due to his position in the middle of the court.
john jeffries tells the story of the burger joint through the lens of a biography of powell. All of these incredibly important issues arose during Powell’s tenure on the court from 1972 to 1987: Roe vs. Wade, death penalty cases, and affirmative action cases where Judge Powell was the deciding vote in a divided court. John had access to all of Judge Powell’s private papers and many other internal materials.
And he’s a brilliant storyteller. Let’s take the inside story of the gay rights case, Bowers vs. Hardwick, a case in which the court in 1986 said, by a five-to-four vote, that a law criminalizing sex between consenting homosexual adults is constitutional. justice powell had a gay paralegal, who was in the closet, working on the bowers case. Powell tells the paralegal, “I’ve never met anyone who was gay in my life.” Had Powell known that the paralegal was gay, he might have decided otherwise, because we know from social scientists that one of the most important factors producing changes in attitudes toward homosexuality is meeting people who are gay and lesbian. Powell was horrified by the idea of jailing people for consensual sex, but he didn’t want to issue a sweeping ruling in favor of gay rights that would lead to something like gays serving openly in the military or gay marriage, because this is 1986 and thought that the country was not ready. So Powell was looking for a narrow justification to say that people can’t be jailed for consensual private sex between adults, but he couldn’t find that justification and his paralegals didn’t propose it for him. . bowers was overturned by lawrence vs. Texas in 2003. Powell later said, “I made a mistake on that one.”
justice powell was the swing vote on abortion. It was the deciding vote on the death penalty. it was a decisive vote on gay rights. he was the swing vote on affirmative action. he was one of the most influential justices in history, mainly because he was in the middle of the court in the same way that kennedy and o’connor became the middle of the court after powell resigned in 1987. it’s just a story Fascinating about a statesman trying to produce compromise positions and coalitions. and is that really his job?
powell was confirmed 89 to 1. can you explain what has happened to the nomination process since powell resigned from the court? and how the contentiousness of the confirmation process has shaped today’s court?
In 1970, the country was not as polarized politically or ideologically, the Democratic Party was slightly more liberal than the Republican Party. many voters split their votes, it was not uncommon for someone to vote for a democrat congressional representative and a republican president. now the two parties hate each other. They are more polarized than ever. they do not live in the same factual universe and regard their opponents as dire threats to the state of democracy and capitalism. the magistrates are part of that universe of extreme ideological polarization. so it’s all a fall, protracted fight. But the Republicans deserve more blame for this because Mitch McConnell did something that had literally never been done in the history of the United States: he stole a seat on the Supreme Court.
the reason powell’s replacement was so controversial is that everyone understood powell to be the swing vote on most major issues of constitutional law. Justice Scalia, who was appointed the year before Powell resigned, was confirmed unanimously, in part because he was replacing Burger: one Conservative replacing another Conservative. William Rehnquist was promoted from Associate Justice to Chief Justice at the same time Scalia was nominated. he drew most of the fire from Democrats, but was still confirmed by a two-to-one margin. Scalia replaced Rehnquist in the Associate Justice position. Between 1986 and 1987, the Democrats took control of the Senate. Supreme Court justices must be confirmed by the Senate, so now Reagan was going to have to get his court nominees approved by a Democratic Senate. Given that Justice Powell was in the middle of the court, the next Reagan nominee would mean a power shift on the court.
“all the reforms that are vitally important to reduce inequality and entrench democracy could be nullified by a conservative majority on the supreme court made possible by maldistribution”
The other thing is that the president decided to nominate robert bork, a conservative legal intellectual, who had taken some very controversial positions in his professional life. Bork had once argued that the 1964 Civil Rights Act was unconstitutional. In 1986, a group of Southern Democrats were elected to the Senate with overwhelming black support. African-Americans obviously weren’t thrilled about having someone on the court who had opposed the constitutionality of the 1964 civil rights act. So there was an all-out fight over the Bork nomination. Liberals viewed Bork as an extreme outlier who didn’t really deserve to be on the court. Bork was rejected and the Conservatives were bitter because they felt he was treated unfairly.
For the next 20 years, there wasn’t much controversy when a Democrat replaced a Democrat or a Republican replaced a Republican. Clarence Thomas’s nomination was controversial because he was a Democratic Senate, and Thomas, who opposed race-based affirmative action, was replacing Thurgood Marshall, the icon of the civil rights movement. when ruth bader ginsburg replaced justice byron white and when stephen breyer replaced justice harry blackmun, there was a liberal replacing a liberal; that was not controversial. When President George W. Bush nominated Samuel Alito to replace Justice Sandra Day O’Connor in 2005, there was more resistance because he was a conservative replacing a swing vote. but then again, during the obama administration, when there was a liberal replacing a liberal, like justice souter replacing justice sonia sotomayor and justice elena kagan replacing justice john paul stevens, they were approved, not overwhelmingly, not by unanimously, but by substantial margins.
then in 2016 senate majority leader mitch mcconnell stole a supreme court seat. the Democrats had won control of the Supreme Court and he took it from them on the basis of a principle he has now blatantly defied. Just four years ago, he said, “you don’t replace people in the last year of a presidential term.” And now, with the death of Justice Ruth Bader Ginsburg 45 days before the election, he is hypocritically challenging this “principle.” That’s why nearly every Democrat opposed Neil Gorsuch, every Democrat except one opposed Kavanaugh, and every Democrat will probably oppose Amy Barrett.
Many Democrats are now thinking very seriously about expanding the size of the court. if joe biden gets elected and the democrats take control of the senate, that will be considered and i would advocate for it.
why?
Anything the Democrats want to do in a Biden administration, whether it’s expanding health care, imposing wealth taxes, trying to stop climate change, or expanding voting rights, could easily be overturned by a conservative majority of six to three in court. I don’t think the Democrats have any choice but to counter that possibility.
There is a strong and affirmative case for the Democrats to expand the size of the court. if the Democrats win in November, they will have won the popular vote in seven of the last eight presidential elections; however, Republican presidents, who did not take office having won the popular vote, will have appointed five of the nine supreme court justices. four conservative justices will have been confirmed by Senate majorities that were so slim that the senators in the majority did not represent the majority of Americans. Democrats are heavily disadvantaged in the Senate by maldistribution, which means that Wyoming has the same two senators as California, even though California has 70 times the population. there are structural handicaps for democrats in our current system, especially in the senate, also in the electoral college and even in the house, that make it very difficult for the will of the majority to be felt in the united states. but it’s very hard to do anything about senate misappropriation or electoral college injustice without a constitutional amendment.
unless they start creating new states, there is a realistic chance that the democrats will never win control of the senate again after 2020. they need to make the district of columbia a state and they should make puerto rico a state, as soon as Puerto Ricans vote for it in a referendum. if the Democrats don’t do that, they may lose control of the Senate in 2022 and never control it again.
again, to correct the maldistribution in the senate and electoral college, a constitutional amendment is needed. but you can change the size of the supreme court by law. the main argument against doing that is that it will lead to an endless cycle of retaliation where each side expands the court. but the Republicans will do it the first time they have the opportunity and the need, regardless of what the Democrats do. Mitch McConnell has shown in half a dozen different ways that he doesn’t care about traditional norms, traditional institutions, and traditional attitudes of tolerance.
Democrats won the chance to control the court when Scalia died during Obama’s presidency, and they stole it. the Democrats should because there is a good affirmative case for why they have the right to control. I don’t know if senators like joe manchin or john tester are going to agree with the expansion of the court. if they don’t expand the court, I’m pessimistic. All of the reforms that are vitally important to reducing inequality and entrenching democracy could be undone by a conservative majority on the Supreme Court made possible by maldistribution and McConnell’s unprecedented theft of a Supreme Court seat. expanding the court could be the last chance to allow political, social and economic reforms in the united states.
See Also: The 10 Best Books on Mental Toughness (to Read in 2022)