On September 18, 2020, the Supreme Court delivered shocking news: longtime liberal stalwart Justice Ruth Bader Ginsburg died at 87 years old. Despite democratic norms against seating a new Justice during a Presidential election, Senate Republicans confirmed Donald Trump’s nominee, right-wing Appellate Judge Amy Coney Barrett, only five weeks later to replace Justice Ginsburg, cementing a 6-3 conservative majority on the Supreme Court.
The United States now stands at the precipice of an anti-democratic conservative legal revolution, a revolution that threatens citizens’ fundamental rights, checks and balances, and American democracy itself. Paradoxically, the best way to save the United States from Supreme Court-sanctioned democratic backsliding is to engage in behavior usually seen as anti-democratic: pack the court.
The United States Constitution says little or is completely silent on crucial questions to address issues arising from the Federal Government engaging in anti-democratic or illegal behavior. Tom Ginsburg and Aziz Huq note that this construction makes the document unique among similar liberal constitutions . These experts on democracies argue that the United States Constitution says little about either horizontal accountability–the internal, intragovernmental mechanisms to stop anti-democratic or illegal behavior–or vertical accountability–the ability of the people to root out anti-democratic or illegal behavior.
Throughout American history, the Court has stepped into the gap, making crucial rulings about the balance of power among the three branches of government, the limits on emergency and warmaking powers of the President, and citizens’ political speech and voting rights. Landmark 20th century decisions, such as Brandenburg v. Ohio, New York Times Co. v. Sullivan, Texas v. Johnson, and Baker v. Carr, create a strong legal framework protected primarily by precedent to secure citizens’ speech, press, protest, and voting rights, which are key elements in effective vertical accountability.
The Supreme Court also has ruled on key mechanisms of horizontal accountability. Madison v. Marbury allows Federal Courts to hold laws unconstitutional, and the Incorporation Doctrine prohibits state and local governments from acting unconstitutionally to deprive people of fundamental rights or equal protection under law. United States v. Nixon places limits on executive privilege and immunity from investigation, sanctioning Congressional oversight of the executive branch.
When read as a whole, these cases create significant substantive constitutional protections. Ginsburg and Huq argue that landmark Supreme Court decisions are more akin to constitutional amendments than narrow holdings on specific judicial questions, which means the Supreme Court wields the power to change the United States Constitution with only five votes.
This awesome power makes the current 6-to-3 conservative majority arrived at through anti-democratic measures alarming, as the conservative justices routinely subscribe to two worrying doctrines that undermine the horizontal and vertical accountability mechanisms embedded in Supreme Court precedent.
First, the unitary executive theory, originating as a fringe legal theory during the Reagan Administration, argues that an original understanding of the Constitution grants the president unquestionable authority in the realm of foreign affairs, warmaking, national security, and law enforcement. This unquestionable authority also extends to the directors of regulatory agencies, law enforcement bureaus, and inspectors general that constitute the executive branch.
While this originalist, historical argument is dubious at best and outright constitutional misinterpretation at worst, unitary executive theory nonetheless threatens constitutional and statutory mechanisms of horizontal accountability. This year, in Selia Law v. Consumer Financial Protection Bureau, the Supreme Court’s conservatives struck down a law that shields the director of the Consumer Financial Protection Bureau from dismissal except in cases of malfeasance or neglect, despite Congress explicitly drafting the law to avoid political meddling. Writing for the majority, Chief Justice Roberts argues “in our constitutional system, the executive power belongs to the President,” etching into precedent a belief that the President may act with impunity on matters within the executive branch.
In another 2019 5-4 decision, the Court ruled in Trump v. Hawaii, better known as the infamous “Muslim ban case,” that a court “must accept” the executive’s national security rationale. A court “cannot substitute its own assessment for the Executive’s predictive judgments on such matters.” Once again, the conservatives shied away from conducting any independent review of the executive’s reasoning, instead accepting the President’s national security claims at face value. Now armed with a 6-3 voting majority, Supreme Court conservatives can continue to erode the power of both independent government watchdogs and the judiciary itself to hold executives horizontally accountable.
In addition to unitary executive theory eroding horizontal accountability, the conservative belief of deference to state governments on voting rights issues threatens to erode vertical accountability mechanisms. In 2013 in Shelby County v. Holder five conservatives struck down Section IV of the Voting Rights Act, writing that the federal government cannot require any state or local government pre-clear changes to its voting laws with the Department of Justice. The Court held that advances in racial voting equity since 1965 render the burdens of the Voting Rights Act to state governments too onerous.
Shelby County has begun a new era of anti-voting rights measures. Hours after the announcement of the Shelby decision, Texas implemented a strict voter ID law that the Department of Justice had previously blocked under Section IV. In Husted v. A. Philip Randolph Institute, the Supreme Court deferred to a state legislature, permitting Ohio to purge hundreds of thousands of voters from voter rolls just before the 2018 midterm elections. Within a week of deciding Husted, the Court upheld a racist Texas redistricting plan in Abbott v. Perez, finding that plaintiffs must prove discriminatory intent in redistricting rather than show discriminatory impact, hollowing out judicial enforcement–and after Shelby Co., the most effective horizontal enforcement mechanism to protect against democratic erosion of voting rights. Worryingly, Justice Brett Kavanaugh in a recent concurring opinion in DNC v. Wisconsin State Legislature endorses a fringe theory that courts should never grant relief from state voting laws regardless of circumstance. While Kavanaugh’s concurrence is not law, the increasing rightward tilt of the court risks completely removing the court from overseeing voting laws.
The current conservative bloc on the Supreme Court has slowly eroded American democracy’s vertical and horizontal accountability mechanisms, embracing voter suppression and unitary executive theory. The outsized role of the Supreme Court in protecting American democracy, with its power to de facto to amend the Constitution, makes the conservative majority poised to fundamentally alter application of the Constitution for decades to come.
Packing the court is the most effective and timely way to prevent democratic backsliding, restore judicial oversight and, with it, vertical and horizontal accountability mechanisms. The conservative majority may persist for a decade or more, delivering blow after blow to democratic accountability and permitting endless executive aggrandizement. Other court reform plans that limit the Court’s authority, either by treating the Court’s decisions as advisory rather than de facto Constitutional amendments or instituting term limits for justices, ignore the powerful role that the Court should play in protecting democratic norms and accountability. Notably, limiting the Court’s power now would merely enshrine the decade of disastrous, anti-democratic conservative precedent into permanent law since a newly-reformed Court with nine justices would be too weak to institute meaningful, lasting change.
American democracy requires a powerful force to apply the Constitution in a manner that prevents democratic backsliding. Packing the court with justices willing to uphold citizens’ rights, rather than justices dedicated to deferring to all-powerful individuals residing in the executive, is the only effective way forward. Ginsburg, Thomas and Aziz Huq. How to Save a Constitutional Democracy. Chicago: University of Chicago Press. 2018.