Following the appointment of Clarence Thomas in 1991, 8 out of 9 Supreme Court Justices had been appointed by Republican Presidents. Yet, rather than rolling back prior encroachments, the past two decades have seen the tides of judicial liberalism wash further forward.
Quite simply, the conservative strategy of reshaping SCOTUS through Presidential appointments has failed. There is very good reason to believe it would be just as unsuccessful if Trump were elected President this year.
People overestimate the interest of the President in nominating a candidate preferred by their party's base. Presidents care primarily about their own personal reputation for the sake of popularity with the electorate as a whole. This is why Dwight Eisenhower nominated the liberal Earl Warren, why Richard Nixon appointed five members to the court without entrenching a conservative majority, and why Donald Trump could be expected to do likewise. It is the path of least resistance for a President who has no deep ideological attachment to the judicial cause.
Furthermore, if the President is more desperate than the Senate to fill a vacancy on the Court, the Senate can insist that the President nominate someone ideologically congenial to them. Hence Justices Souter, Kennedy, and Stevens were appointed nominally under Republican Presidents, but in practice as the result of Democratic Senate majorities. Not having a personal reputation at stake, a Senate majority party can be expected to hold firm for the sake of ideological principle where a President cannot. In fact, it may be easier for the a Senate party to take a stand on principle when the President is a member of the other party.
But, the problem with judicial activism is a deeper one than SCOTUS membership. On the surface, it has the lure of an easy way to bypass political tangles and solve social problems. But, in reality, while Courts can easily launch half-baked forays, the end-run around the process of legislative consultation leaves their projects without deep public support and woefully ill-equipped to marshal the resources needed to effectively follow through. Like an army equipped with artillery but no infantry, they may be able to destroy institutions, but lack the capacity to replace them. This was made clear following Brown v. Board of Education, where little school desegregation occurred in practice until Congress and the executive branch put real resources behind the initiative.
While liberals regularly voice hopes that Courts might enact their dream social reforms through swiping decrees, some conservatives entertain similar delusions that the New Deal regulatory state could be rolled back by judicial fiat.
Alas, there is no easy alternative to the hard work of winning elections, building coalitions, and designing effective compromises, necessary to reform the regulatory and entitlement programs on which every sector of the economy and society relies to some extent. Declare the Medicare program unconstitutional, and the problem of providing $650bn of healthcare needed by those out of work for reason of disability and old age remains.
The lure of the permanent victory through SCOTUS decree is fundamentally incompatible with democracy. One should work to check the power of the Courts to do ill -- not to try to capture absolute power for one party in the belief that it can effectively solve complex social problems with delicate trade-offs through sweeping pronouncements.
The United States Constitution was designed on the premise that those in power naturally seek to extend their authority, and that each branch of government must be given the "necessary constitutional means and personal motives to resist encroachments of the others". The Supreme Court, being a panel of political-appointees, should be a part of the system of checks and balances, not above it. It is foolish to expect a change in the membership to cause the Supreme Court to yield authority that it has usurped from elected officials. Why should we expect Justices to give up their own power at the very moment that their allies have assumed a majority?
It should rather be up to Congress to take power back from the Supreme Court. Article III of the Constitution specifies: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The membership and size of these judicial authorities are also left to Congress.
During the first century of the American republic, Congress repeatedly altered the size of the Court, keeping it on a short leash. As with the unelected 19th Century British House of Lords, it was clear that the power of Justices would be diluted by the addition of new members, should they flagrantly overstep their authority. Like all the other branches of government, they were subject to checks and balances. Court-packing was, of course, difficult -- as it is not easy to get legislation to seat additional Justices approved by House, Senate, and President -- but it was an effective gentle restraint. In practice this forced those seeking to enact projects of social reform to proceed through the longer path of securing broad public approval through elected legislatures, rather than attempting immediate nationwide revolution by legal decree.
Court-packing fell into disrepute when FDR sought to employ it to aggrandize his own power and impose his own agenda. But he was frustrated by the congressional process working as intended. Defensive court-packing, being essential to the balance of the constitution, should in no way be stigmatized. Congress should therefore make it clear that members of the Supreme Court will find their personal power diluted whenever the institution oversteps its bounds. This may erode the exulted status of the Supreme Court in society -- and that would be a good thing.
In more ordinary times, Senators should avoid being bullied into seating nominees made by the other party's President. The past year should reassure those concerned that the sky would fall if SCOTUS went long without 9 Justices. There is no reason why Senators shouldn't be able to insist that a seat be left open indefinitely unless a compromise replacement be seated. Nor is there any reason why a nominee from each party couldn't be seated together as a compromise to preserve the balance of the court. A court with an even number of justices might occasion circuit splits -- but, more likely it would cause Justices to behave less intransigently, and find some basis for agreement. After all, as much as Supreme Court Justices might disagree with each other, they wouldn't want to let other Courts have the final say!
