Yet the justices have been doing the same for years against more conservative governments. Courts have overturned policies involving welfare, criminal penalties, abortion, contraception, prison conditions, education, housing, zoning, employment, gay marriage, and much more. Stern acknowledged that because of Justices Sandra Day O’Connor and Anthony Kennedy, even the Republican‐dominated high court for years “handed the left a stream of victories.” For many on the right, the judiciary long ago became illegitimate. There were efforts to impeach liberal Chief Justice Earl Warren. Right‐leaning politicians proposed stripping the courts of jurisdiction over controverted issues. And activists made the membership of the Supreme Court a political issue.
But now, looking into the judicial future, liberals see Hades rather than paradise. So SOMETHING MUST BE DONE. Stern imagines “Democrats marching in the streets, demanding that the president and Congress ignore” rulings they don’t like. He projects Democratic officials implementing policies despite contrary high court rulings, rather like when President Andrew Jackson reportedly said of Chief Justice John Marshall, regarding a decision to protect Native Americans: “Marshall has made his ruling. Let him enforce it.”
Stern also embraces federalism. Maybe blue states will resist court rulings: after all, a lot of experience was gained as part of the South’s Massive Resistance against desegregation. At least Stern recognizes “the danger in adopting the tactics of segregationists,” but offers no alternative. Of course, he does not suggest that liberals, like conservatives before them, just suck it up and accept that there are consequences of losing elections.
Also in Slate, law professors Daniel Hemel and Christopher Jon Sprigman debated how “progressives should react to the right‐wing takeover of the judicial system as heralded by the seating of Supreme Court Justice Brett Kavanaugh.” The University of Chicago’s Hemel argued that “we are a lot better off with the Supreme Court in its current form as a check.”
Indeed, noted Hemel, “progressive presidents sometimes trample over civil liberties.” For instance, he explained: “Take away the court’s power to strike down popular laws and we’re back to a world in which flag burning is banned, the Pledge of Allegiance is mandatory in schools, the press is subject to prior restraint, and public employees are prohibited from speaking out on matters of public concern.” With the high court most likely to fail the left by omission, not intervening to introduce a progressive paradise, he prefers “to have a court that sometimes underpolices than to have no cop on the beat.”
What to do? He proposes delaying the start of a justice’s term until the president appointing him or her leaves office.
The idea is to ensure justices are not allied with the presidents who appointed them. But when has that been an issue? Richard Nixon lost 9–0 when the Supreme Court ruled on his attempt to use executive privilege to shield tapes of his Oval Office conversations. That’s not much of a left‐wing agenda.
New York University’s Sprigman sees less reason to support the Supreme Court. He believes federal judges are “more likely to join in the attack” on American democracy. And he has little respect for supposedly leading progressive decisions. For instance, he recognizes that Roe v. Wade helped jump‐start the modern conservative movement. What he really despises is constitutionalism and belief in limits on government. Wrote Sprigman: