It is a daunting list, but one without much connection either to law or the Constitution, which are areas where Roe fails. In fact, that case already has been altered, though only incrementally over the years. Nor is a radical majority likely. Chief Justice John Roberts has been particularly reluctant to overturn signal legislative initiatives, such as Obamacare, which he saved by using a taxation argument largely dismissed by the legal community.
The majority never likes to be checked by the minority. But the only guarantee of essential but sometimes unpopular rights is often the courts. Millhiser suggested that everything would be okay if the threat of court‐packing caused the court to moderate, meaning again make it all up when the zeitgeist struck. Or if Republicans joined to support “a constitutional amendment depoliticizing the judicial selection process,” whatever that means. After all, Democrats have been no less partisan than Republicans when appointing Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and a crowd of progressives before them.
The fastest, surest way to destroy the judicial branch is for a partisan Democratic takeover by manipulating the process. That would trigger a race to the bottom: Republicans would have little choice but to respond in kind. Indeed, they might expand the process, adding extra circuit and district court judges, as well.
At least Millhiser admitted, “Court‐packing is a dangerous tactic, though. If either party resorts to court‐packing, they risk destroying the legitimacy of the judiciary.” Or there might be a return to the 1960s, with Republican campaigns to oust hyper‐interventionists and remove court jurisdiction over anything that matters. Progressives then might ruefully remember why they once believed in the judiciary as a bulwark against government abuse. The Spectator’s Dov Fischer warned, “As soon as people begin to perceive that judges are not following pre‐established and properly enacted rules of the game but instead simply are ‘making up rules they personally prefer,’ the entire system of justice collapses.”
The Senate Democratic caucus already is enjoying payback for previous decisions. Democrats filibustered eminently qualified judicial nominees by President George W. Bush. A compromise was reached that avoided a challenge to the filibuster itself. But when GOP legislators filibustered President Barack Obama’s court nominees, the Democratic majority eliminated the practice for district and appellate nominees. Democrats sought to filibuster Gorsuch, President Donald Trump’s first Supreme Court nominee, so the GOP eliminated the practice for high court nominees as well — an inevitable decision, since the filibuster is sustainable only if both sides respect it. Sen. Jon Tester (D‐Mont.) now admits that his 2011 vote to eliminate the filibuster was “probably the biggest mistake I ever made.”
Both Republicans and Democrats have poor records defending the role of an independent judiciary when decisions seem to go against them. In the 1960s, conservatives ignored the importance of judicial review when they sought to hamstring judges. A half‐century later, many liberals have become unbridled majoritarians, abandoning the tool they once believed to be essential for defending individuals against the overweening state. Perhaps this should come as no surprise. These days the Left rarely even pretends to have any interest in freedom. If liberty isn’t important, who needs independent judges?
Those on the left should ask themselves, however, if the democracy‐dependent courts that they now desire would have issued Brown v. Board of Education, which finally overturned the infamous decision enshrining segregation, Plessy v. Ferguson. Would any of the civil libertarian decisions celebrated by the Left have received a majority court vote and survived the popular backlash? Free speech almost certainly would have been sharply curtailed years or decades ago.
Progressives should listen to their better angels. It was Democrats who blocked President Franklin Delano Roosevelt’s infamous court‐packing plan. Historian Michael Parrish wrote that the initiative “divided the New Deal coalition, squandered the political advantage Roosevelt had gained in the 1936 elections, and gave fresh ammunition to those who accused him of dictatorship, tyranny, and fascism.”
Some modern Democrats express similar concerns. For instance, Sen. Michael Bennet warned against joining “in that demolition” of the judicial appointment process by Republicans. Sen. Cory Booker worried that retaliatory court‐packing could result in a grandchild asking, “Hey, Granddad, why are there 121 people on the Supreme Court?” And the Left’s celebrated judicial standard‐bearer, Ruth Bader Ginsburg, warned that mass appointments “would make the court look partisan. It would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’ ” She said that even though she has lost influence as the Trump appointees took their seats.
Millhiser admitted that “while the price of court‐packing is high, the price of failing to rein in a rogue Supreme Court could potentially be even higher.” Presumably Jerry Ford and many GOP legislators agreed with that sentiment a half century ago. Both sides underestimated the risk to liberty, captured by that famous, if overly quoted, scene from A Man for All Seasons, in which Thomas More warns that “This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down … do you really think you could stand upright in the winds that would blow then?”
Will an independent judiciary survive? Warren declared, “It’s not about the expansion, it’s about depoliticizing the Supreme Court.” But the Left has shamelessly politicized the courts for decades. Despite their charming rhetoric about protecting democracy, left‐wing activists are most frustrated because the American people continue to resist plans for a socialist, gender‐free, PC paradise. That is what Roe was all about, turning the court into a small‐scale legislature controlled by the Left. Democrats fear that in the future they will be unable to rely on the courts to impose policies resisted by the American people.
The only way to depoliticize the courts is to stop demanding that they decide political and partisan rather than legal and constitutional disputes. If the Democratic Party wants to expand state power, it should strive to convince the American people. And if Democrats want to end constitutional restrictions on expansive government, they should amend the Constitution. Not use judges to subvert the legal order.