[ Critics of the Supreme Court think it has lost its claim to
legitimacy. But proposals for reforming it must strike a balance with
preserving its power and independence, which remain essential to our
constitutional system.]
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CONSTRAIN THE COURT—WITHOUT CRIPPLING IT  
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Laurence H. Tribe
July 27, 2023
New York Review
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_ Critics of the Supreme Court think it has lost its claim to
legitimacy. But proposals for reforming it must strike a balance with
preserving its power and independence, which remain essential to our
constitutional system. _

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information.

 

The mounting drumbeat of verbal assaults on the US Supreme Court,
including some I have launched myself, has reached a crescendo that
finds otherwise sober analysts secretly (and sometimes not so
secretly) cheering every new outrage. Some of the justices are
recklessly contributing to the growing disrespect for the Court as an
institution. That disrespect stems in part from ethical scandals but
in part, too, from the vast gulf between this Court’s substantive
understanding of the Constitution, as well as its approach to the task
of judging, and the vision of both those matters shared by the great
majority of Americans. The growing consensus, not just among liberals
but even among many conservatives, that the Supreme Court has lost its
claim to legitimacy—a consensus epitomized in an opinion piece
headlined “Clarence Thomas Can’t Undermine the Legitimacy of the
Supreme Court Fast Enough”—makes even a critic like me sound the
alarm: Be careful what you wish for!

Over the past few years, vulnerable democracies such as Hungary,
India, Poland, and Israel have struggled to protect their independent
judiciaries from political influence and to preserve them as checks
against an unbounded concentration of power. In Israel, for example,
as the far-right government has moved to reduce the power of the
country’s Supreme Court, moderates and liberals have protested
passionately.  They have no illusions that the court has invariably
protected minority rights or that its curbs on the government’s
policies in the occupied territories have been the norm rather than
the exception. But they recognize the danger in disarming it
altogether.

The United States faces a similar tension between entrusting power to
an independent judicial tribunal that preserves the guardrails of
government under law and keeping that power from becoming a threat to
fundamental human rights, representative government, and the
protection of minorities. Among the most notable of a growing number
of books voicing concern with an increasingly imperious judiciary
is _Nine Black Robes: Inside the Supreme Court’s Drive to the Right
and Its Historic Consequences_, Joan Biskupic’s detailed account of
the Court’s rightward shift. That shift was cemented, as Biskupic
demonstrates, by Donald Trump’s appointment of three justices
handpicked by the hard-right Federalist Society for their regressive
(not merely conservative) stances on abortion, affirmative action, gay
rights, guns, Congress’s power to delegate authority to the
executive branch and independent agencies, and government support for
religion.

The author of award-winning biographies of Chief Justice John J.
Roberts Jr. and Justices Antonin Scalia, Sandra Day O’Connor, and
Sonia Sotomayor, Biskupic is no partisan firebrand. But she pulls no
punches in arguing that the Trump presidency helped shape a Supreme
Court that has become nakedly nonjudicious, increasingly partisan, and
aggressively antiliberal, issuing decisions based on cherry-picked
historical data and conservative dogma. “The Trump effect,” she
observes, “especially in terms of the individuals chosen and the
resulting shift in the balance of power, has been incomparable. He is
gone and they are here for life.”

Biskupic is most scathing in her criticism of _Dobbs _v._ Jackson
Women’s Health_ (2022), which struck down the right to
abortion._ _She foreshadows her focus on _Dobbs_—which I
criticized in these pages —with an introductory chapter on the
Supreme Court’s astonishing decision in _Whole Woman’s
Health _v._ Jackson_, decided six months
before _Dobbs_ overruled _Roe _v. _Wade_ (1973). In _Whole
Woman’s Health_, a bare majority of the justices let a Texas ban on
abortions beyond six weeks go into effect despite its indisputable
illegality under the nationwide standards that supposedly still bound
all legislatures under _Roe_._ _To make matters worse, the Texas ban
was deviously designed to transfer enforcement from state officials to
bounty-hunting private citizens—vigilantes—to make it more
difficult to challenge in any court.

While _Dobbs_ was predictable, the majority’s dismissive tone and
its cavalier insistence that its predecessors’ understanding of the
Constitution was manifestly inferior to its own were nonetheless
jarring. The Court’s opinion, notoriously leaked in virtually final
form two months before its official announcement, accused the 7–2
majority in _Roe_, drawn from both political parties—and more than
a dozen justices over the decades—of having erred too egregiously
for their views to be taken seriously, much less to merit thoughtful
rebuttal. Justice Samuel Alito’s majority opinion, Biskupic
observes, was

stridently written, an audacious dismissal of a fundamental right
granted nearly a half century earlier. [His] historical sources were
both strange (reaching back to English law that treated a woman who
undertook abortion as a “murderess”) and limited.

Most unsettling to Biskupic is the way in which the Court’s new
majority jettisoned a long-standing precedent that entrenched basic
rights of privacy, equality, bodily integrity, and personal autonomy
and based its ruling on nothing beyond fiat, couched as ex cathedra
(and all but expressly religious) disagreement with _Roe_ and the
decisions that had preceded and followed from it.

Reviewed: 

Nine Black Robes: Inside the Supreme Court’s Drive to the Right and
Its Historic Consequences
[[link removed]] by Joan
Biskupic William Morrow, 401 pp., $32.99 

The Supermajority: How the Supreme Court Divided America
[[link removed]] by Michael
Waldman Simon and Schuster, 388 pp., $29.99 

Overruling Democracy: The Supreme Court vs. the American People
[[link removed]] by Jamin B.
Raskin Routledge, 290 pp., $56.95 (paper) 

The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass
Power and Undermine the Republic
[[link removed]] by Stephen
Vladeck Basic Books, 334 pp., $30.00 

Supreme Hubris: How Overconfidence Is Destroying the Court—and How
We Can Fix It [[link removed]] by Aaron
Tang Yale University Press, 316 pp., $30.00

In that light, the partisan nature of the _Dobbs _ruling was
unmistakable and arguably without precedent in the Court’s history.
Three of the justices who made overruling _Roe _possible—Neil
Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were appointed by a
president who openly said he had selected them for that purpose, a
point the joint dissent by Justices Stephen Breyer, Elena Kagan, and
Sotomayor took the unusual step of saying out loud: “The Court
reverses course today for one reason and one reason only: because the
composition of this Court has changed…. Today, the proclivities of
individuals rule.”

This eagerness to discard precedent simply because those so inclined
finally had five votes to do so was evident in so-called shadow docket
opinions—issued on an accelerated schedule, without anything
resembling full briefing by the parties or the formality of oral
argument, and often with little that could properly be described as an
explanation of the Court’s reasoning—striking down various Covid
restrictions. One brief opinion, _Tandon_ v. _Newsom_ (2021), held
that California’s temporary ban on indoor at-home gatherings had to
exempt religious meetings if it continued to exempt activities (like
shopping) outside the home, regardless of state health officials’
reasonable conclusion that the latter posed less risk of disease
transmission. As Biskupic notes, that 5–4 ruling, issued at midnight
without briefing or argument, “introduced a new level of favoritism
for religious activities and government accommodation.” In this and
other recent decisions, the Court rejected a decades-long
understanding among Americans that the Constitution requires a
separation of secular from religious power.

Biskupic also chronicles the Supreme Court’s increasing hostility to
economic and environmental regulations and to relaxations of financial
obligations that the conservative justices oppose as a matter of
policy, as well as to administrative expertise more generally. Since
Justice Barrett’s arrival in 2020, the six conservatives have
limited the federal government’s power to implement manifestly
sensible measures to combat a once-in-a-century pandemic, striking
down the Centers for Disease Control’s eviction moratorium and the
Labor Department’s requirement that companies with one hundred or
more employees require vaccinations or weekly testing.

Biskupic writes that “past GOP-appointed justices, even with their
aversion to big government and interest in protecting business, often
deferred to regulators overseeing their specialized fields.” In
contrast, these conservatives rejected the agencies’ authority to
issue emergency regulations on such a “major question” despite the
fact that both agencies relied on statutes expressly giving them broad
authority during public health crises. As a culmination, the Court
flipped the presumption of deference owed to agencies, concluding that
the Environmental Protection Agency could not implement a plan to
reduce coal dependence—_any_ plan to do so, evidently, because no
particular plan had been promulgated at the time of the ruling—on
the wobbly and judicially invented basis that issues of such
“political and economic significance” were too “major” to fall
within the literally applicable statutory authority that Congress had
lacked the foresight or the political will to make more specific.

As a result Congress is required, not just going forward but in laws
enacted decades before this new dispensation, to be clairvoyantly
precise about each agency’s exact scope of authority, which is
difficult if not impossible when giving agencies broad power to tackle
unforeseen threats. This judge-made “major questions” doctrine has
the effect of stripping power not only from agencies but from Congress
as well. It thereby concentrates power in the hands of the Supreme
Court, which increasingly fits the frequently overused moniker of
“imperial.”

While Biskupic is forthright in excoriating the newly empowered
majority for reversing decades’ worth of precedent in decisions like
these, there is less to admire in her efforts to grapple with the
historical origins and substantive merits of competing views on the
hotly contested issues she addresses. She dispassionately describes
but doesn’t exactly dissect the views of Justices Thomas and Ruth
Bader Ginsburg in a 2020 case concerning access to contraceptives, and
devotes pages to how Chief Justice Roberts changed his mind and
supplied the decisive fifth vote to prevent the Trump administration
from putting a citizenship question on the Census. Biskupic’s
sourcing is impressive, and her “inner sanctum” anecdotes are
gripping and often entertaining, but she provides little guidance to
help readers evaluate the deeper implications and thus the merits of
the reasons the justices offered for their conclusions.

Also missing from Biskupic’s book is any sense of how much of the
Supreme Court’s history has been marked by what today appear to be
shockingly reactionary and even repressive decisions. There is nothing
about its infamous rulings in cases like _Dred
Scott _v._ Sandford _(1857), holding that Black Americans could
never become citizens and had no rights that whites were bound to
respect; or _Giles _v._ Harris _(1903), holding that the Court
lacked any authority even to entertain a challenge to a state’s
complete disenfranchisement of Black citizens despite the Fifteenth
Amendment; or _Lochner _v._ New York _(1905), stripping states of
the capacity to regulate sweatshop working conditions;
or _Hammer_ v. _Dagenhart _(1918), depriving Congress of the
authority to forbid the interstate sale of the products of child
labor; or _Buck _v._ Bell _(1927), sustaining the compulsory
surgical sterilization of women of supposedly substandard
intelligence; or _Korematsu _v._ United States _(1944), upholding
the forced removal of loyal Japanese Americans from their homes after
Pearl Harbor.

Someone whose image of the Court’s place in our history is that of a
largely benign and sometimes heroic institution could be forgiven for
concluding that what Biskupic’s subtitle calls “the Supreme
Court’s drive to the right” is a relatively new phenomenon. With
the best of intentions, she plays to an outdated conception of the
Court until recently held by many Americans. This “generational
nostalgia,” as Michael Waldman calls it in _The Supermajority_,
stems from the long-standing veneration that the Court and many
individual justices received from legal elites, including those who
closely follow the Court as journalists, and the broader American
public alike.

However misplaced such reverence may have been—and Waldman’s book
devastatingly demonstrates that it was profoundly misplaced from the
very start of the Court’s history—the current Court has made clear
that even the judiciary’s legitimacy as the law’s highest
expositor cannot be presumed. The downside of Biskupic’s examination
of the Trump years with microscopic intensity is the potential for
glossing over the Court’s troubling history of undermining political
equality and human rights, which long predates the Trump
administration. In Waldman’s better-balanced and more factually
grounded telling, that history serves to illustrate how judicial
supremacy—the idea that, beyond being responsible for reviewing and
resolving the competing legal claims of the parties before it in any
particular controversy, the federal judiciary in general and the
Supreme Court in particular bear ultimate responsibility for
authoritatively interpreting the Constitution and laws of the United
States—has been incompatible with the advancement of individual
rights.

When I taught constitutional law, I would explain to my students in
considerable detail how the Supreme Court, when performing its
historic function in the design of our political and legal systems,
had often been a champion of equal opportunity, inclusion, respect for
personal autonomy, and privacy. Its broadly understood and widely
respected authority often served, I would assure my students, to deter
Congress, the president, the federal agencies, and the scores of state
and local legislative, executive, and judicial officials from riding
roughshod over our rights.

Lawyers of my generation came of age while Earl Warren was chief
justice, when the story I told my students seemed to contain much
truth. But it has since become increasingly clear that the era of the
Warren Court—roughly from 1953 to 1969—was the exception rather
than the norm. Today, building on the conservatism of the Court during
the chief justiceships of Warren E. Burger and William H. Rehnquist,
the Court under Chief Justice Roberts treats all rights—other than
those it purports to discover in the Second Amendment and in selected
aspects of the Free Speech and Free Exercise of Religion Clauses of
the First Amendment—with extreme hesitation and often with derision.

At the same time, as both Biskupic’s and Waldman’s books
demonstrate, the current Court acts on what can only be called a
shriveled view of equality under the law, in areas ranging from bodily
integrity to voting rights and the way district lines are drawn for
state legislatures and the House of Representatives. Allowing a Court
with so narrow-minded and essentially retrograde a view of
constitutional rights to continue to occupy pride of place in defining
the promises of our Constitution risks rendering that document, and
the democracy on which it rests, inoperable for the very people who
need it most and as a charter for the republic I extolled to
generations of students.

To be clear, judicial supremacy is neither woven into the
Constitution’s text and structure nor discoverable in the history of
its creation—a reality that today’s supposedly “textualist” or
at times “originalist” Court conveniently ignores. Instead, as the
Harvard Law School professors Nikolas Bowie and Daphna Renan have
eloquently explained, judicial supremacy “took hold of American
politics only after the Civil War, when the Court overruled
Congress’s judgment that the Constitution demanded civil-rights and
voting laws.”  In his 2021 testimony before the Presidential
Commission on the Supreme Court (on which I served), Bowie elegantly
elaborated the degree to which it has been the justices who sat on the
Court over most of its history who have, without so much as an
attempted justification, seized that role for themselves and used it
to advance anything but an egalitarian vision. In Bowie’s words,
“As a matter of historical practice, the Court has wielded an
antidemocratic influence on American law, one that has undermined
federal attempts to eliminate hierarchies of race, wealth and
status.”

The oft-invoked appeal to _Brown _v._ Board of
Education _(1954)_ _as testament to the necessity of judicial
supremacy is not entirely
convincing. _Brown _overruled _Plessy _v._ Ferguson_ (1896),
affirming the legality of separate but (supposedly) equal public
accommodation for Blacks and whites. But what the Court did
in _Brown _in 1954 was at least as much a demonstration of
Congress’s protection of minority rights as of the Court’s
enforcement of those rights. The Court was applying 42 USC § 1983,
a federal law passed by Congress during Reconstruction that provided
the means for bringing provisions of the federal Constitution and laws
to bear on state officials. Cases expanding autonomy, dignity, and
privacy like _Roe_ and _Obergefell _v._ Hodges_ (2015),
establishing a fundamental right to same-sex marriage, also depended
entirely upon § 1983 to strike down intolerant state laws. As Bowie
and Renan note, these decisions “don’t represent judicial
supremacy, but rather _Congress’s _ability to make and enforce
national constitutional commitments.”

I have been persuaded by their argument—one also made convincingly
by Waldman—that any satisfactorily revised conception of the
judiciary as a protector of rights, particularly the rights of those
lacking wealth and power, cannot be content to focus on the Supreme
Court but must call on Congress to intervene by enacting statutes that
provide new federal judicial avenues for protecting rights from abuse
by federal officials in the way that § 1983 does with respect to
abuse by state officials. Congress can also intervene by overruling
Supreme Court decisions interpreting ambiguous federal statutes in
ways that gratuitously contravene egalitarian norms.

More active participation by the people’s elected representatives in
reinforcing federal legal protections will naturally reinject fears
about the “tyranny of the majority” into what has traditionally
been a decidedly antimajoritarian process of defining the
Constitution’s protections and even those codified in congressional
statutes. But urging Congress and, for that matter, state lawmakers
and elected state court judges and justices to be more involved in
defining and defending basic rights need not mean that the federal
judiciary in general, and the Supreme Court in particular, would cease
to define the limits beyond which politicians are forbidden to go—a
function that, of course, presupposes the selection of federal judges
and justices committed to it. Nor must those advocating an enhanced
responsibility for the legislative branch concede that Congress and
the Court need always be at loggerheads. Instead, as Waldman explains,
the point is only that Congress has a larger part to play in
supporting American democracy.

Unless Congress steps up to that challenge, we seem doomed to be ruled
in the main by an institution that has long obstructed rather than
facilitated democratic progress. In _Overruling Democracy: The
Supreme Court vs. the American People _(2003), the law professor
Jamie Raskin—now a distinguished member of the progressive but
pragmatic wing of the congressional Democrats—chronicled the
Rehnquist Court’s opposition to virtually any measure expanding
democracy. He astutely dissected the line of decisions in which it
sanctioned state laws that diluted the votes of people of color,
rejected attempts to overcome historic disenfranchisement faced by
Black voters in the South, and turned away challenges to taxation
without representation advanced by those who reside in our nation’s
capital. Raskin argued that “the urgent project of our time is to
free popular democratic politics from the stranglehold of the
Court.” He reserved his harshest critique for the “slapdash job of
interpretation” by the majority in _Bush _v._ Gore_ (2000),
which reflected the Court’s historical reluctance to find in the
Constitution’s text or its interstices anything resembling a broad
“federal constitutional right to vote.”

Raskin was prescient. In the twenty years since he wrote his book, the
Supreme Court has only grown more hostile to democratic participation.
In just the past decade, as both Biskupic and Waldman discuss in
detail, it gutted the Voting Rights Act to enable voter suppression in
the South, upheld voter photo identification laws, condoned purges of
voter rolls, enabled partisan gerrymandering, and obliterated campaign
finance reform. Decisions over the past three years have accelerated
this trend: the Court has opposed deadline extensions and other voting
accommodations during the pandemic and upheld state laws that have
almost certainly intentional racially discriminatory effects on
voting.

A limited reprieve came this year in the form of two
decisions: _Allen_ v. _Milligan_, a 5–4 ruling upholding the
application of the Voting Rights Act to require Alabama to create an
additional majority-minority congressional district (and upholding the
act’s constitutionality in that case despite its explicit use of
race), and _Moore_ v. _Harper_, a rejection by a solid Supreme
Court majority of the dangerous and utterly implausible theory that
state courts and constitutions have no jurisdiction over the decisions
of state legislatures in drawing district lines and selecting slates
of presidential electors. Sadly, observers who interpret this pair of
decisions as evidence of a longer-term readjustment of the Supreme
Court’s antidemocratic attitude are most likely fooling themselves.
My strong sense is that the trend in the decisions of recent decades
has been briefly interrupted, not broken, and that that trend
represents the logical extension of a handful of justices’ veritable
war against voting rights. It is a war one presumes they either
conceal from themselves—as true believers in the myth that they are
mere vessels for legal doctrines that they passively transmit—or
justify to themselves as logical reflections of principled beliefs
about who deserves to belong to “We the People.”

The current and historical excesses of judicial supremacy, and the
growing realization that this supremacy has over time served more to
entrench the power of the haves than to bestow power upon the
have-nots, have inspired a growing chorus of progressive
constitutional scholars to rethink the centrality of the Supreme Court
in our governance. Their basic message is that we mustn’t
mythologize the Court as a paragon of principle standing up for the
downtrodden and dispensing justice without fear or favor across the
long arc of American history. It has largely been anything but.

But it would be no less a mistake, as we rethink the Supreme Court’s
responsibilities, to equate the current Court’s abject,
transparently nonjudicious, and corruptly unprincipled behavior with
the practices of any predecessor Court. I believe we have never seen
a Court so blatantly determined to move the nation in an ideologically
predetermined direction without being even slightly constrained by law
or logic.

Something is badly amiss when a judge as savvy as Justice Kagan,
delivering a dissent orally from the bench for only the fourth time
since she joined the Supreme Court in 2010, accuses six of her
colleagues not just of erring but of acting in a way that “violates
the Constitution” by striking down the administration’s student
debt relief program in _Biden_ v. _Nebraska_. The Court, she said,
was blowing “through a constitutional guardrail intended to keep
courts acting like courts” by “wielding the major-questions sword,
last Term and this one,” to override “the combined judgment of the
Legislative and Executive Branches” in order to eliminate “loan
forgiveness for 43 million Americans.” She pointedly noted, without
meaningful response by the majority, that her colleagues were doing so
in a case that was “not a case” at all. The parties suing the
president were “six States that have no personal stake” in the
loan forgiveness plan but were “classic ideological plaintiffs”
who happened to “think the plan a very bad idea” and who gambled
that the Supreme Court as currently composed would share those policy
preferences and eagerly impose them on the branches our Constitution
assigns to arbitrate “political and policy disputes.”

Writing for the majority, Chief Justice Roberts decried as a
“disturbing feature of some recent opinions” the dissenters’
description of “decisions with which they disagree as going beyond
the proper role of the judiciary,” because it “would be harmful to
this institution and our country” for “the public” to “mistake
this plainly heartfelt disagreement for disparagement.” But the
chief justice’s complaint was misdirected. The problem wasn’t that
Justice Kagan was saying the quiet part out loud. The problem was that
she was obviously right. Both in the loan forgiveness decision and in
the antidiscrimination decision the Court handed down on the same day,
it was reaching out to resolve “cases” it had all but created on
its own in an unmistakable display of zeal to impose its political and
social views on the nation.

It did so in the loan case by pretending that at least one of the
parties before it had legal “standing”—a genuine stake in the
outcome—when none in fact did. And it did so in _303
Creative _LLC v. _Elenis_ by offering a designer with a wedding
website an advisory opinion to “clarify her rights” and relieve
her “worries” that, were she to discriminate against same-sex
couples who wished to marry, she might run afoul of Colorado’s
antidiscrimination law. As Justice Kagan wrote in the loan case, no
court employing “the traditional tools of judicial decisionmaking”
would have acted that way.

Reading just the last few decisions of the past term, one can almost
hear the sound of hairs being split as the Court disassembled ordinary
statutory language in order to reach the conclusions it obviously
wanted to reach about the act of Congress authorizing the executive
branch to “waive or modify” any “student financial
assistance.” One can almost hear deeply rooted principles against
building caste into our laws and against rendering purely advisory,
hypothetical opinions on behalf of parties not claiming any concrete
injury come crashing down in the Court’s decision diminishing the
rights of LGBTQ people, which Justice Sotomayor, writing the dissent
for herself and Justices Kagan and Ketanji Brown Jackson, rightly
described as “quite literally, a notice that reads: ‘Some services
may be denied to same-sex couples.’”

And one can hear the protests of generations of Americans, slave and
free, as the Court, in _Students for Fair Admissions_ v. _President
and Fellows of Harvard College_ and _Students for Fair
Admissions_ v. _University of North Carolina_, rewrites the history
of our country’s painful engagement with race and pretends that
fidelity to the original meaning of the Reconstruction Amendments
compels it to end race-based affirmative action and to insist with
“let-them-eat-cake obliviousness,” as Justice Jackson wrote in her
dissent for herself and Justices Sotomayor and Kagan, that “deeming
race irrelevant in law” will “make it so in life.”

So the case for institutional reform and for structural change made by
scholars like Bowie and Renan must be fine-tuned to reflect the
chilling reality that what we are now witnessing is neither normal nor
inherent in our political architecture. But those scholars have yet to
deliver anything resembling a detailed plan for reform that will be
both politically sustainable and designed to minimize unintended
consequences that could well imperil the stability and uniformity of
federal law across the fifty states.

It is one thing to nod approvingly when Bowie and Renan argue against
a formalistic separation of powers in which the judiciary has the
final say on the Constitution’s meaning and in favor of a
“republican” sharing of functions in which “Congress and the
President, working through the interbranch legislative process, should
decide whether any particular institutional arrangement is compatible
with the Constitution’s separation of powers,”  or when
Professor Samuel Moyn of Yale Law School similarly highlighted the
dangers of judicial supremacy during his 2021 testimony to the
Presidential Commission on the Supreme Court. It is quite another to
embrace Moyn’s view that “disempowering our constitutional
judiciary for the long term is the opportunity that reformers should
seize.”

Unlike proposals to replace life tenure for federal judges with
nonrenewable term limits, which have broad popular support and might
even be accomplished legislatively without amending the Constitution;
and unlike proposals to enlarge the Court to thirteen seats from the
nine allotted to it by statute in 1869 and unchanged since—a move
that would definitely be achievable by legislation alone and that I
view as both justified and necessary in light of the entrenched
character of the uniquely unprincipled current supermajority—cures
of the more radical sort that Moyn and, to an uncertain degree, Bowie
and Renan appear to favor could prove worse than the disease. When
Moyn suggests that Congress “restore the institution to a sensible
position in our constitutional order” by stripping the judiciary of
the power to hear certain kinds of cases, imposing a supermajority
threshold for invalidating a statute on constitutional grounds, or
requiring congressional ratification of any Supreme Court
invalidations of federal law, he proposes a leap into the unknown that
I am glad seems all but impossible to pull off.

The impulses behind the proliferating proposals to counter the Supreme
Court’s bloated and benighted rule over American life are
understandable. Its insulation from even informal accountability to
public sensibility, scientific progress, and competing perspectives
creates the danger of vast power reposing in the hands of individuals
who might have strong ideological and even religiously driven
commitments profoundly out of step with egalitarian and inclusive
values. But I continue to believe that to preserve the rule of law and
avoid putting unchecked power in the hands of potentially corrupt,
self-interested, or faction-driven politicians, we must entrust an
independent checking function to some set of individuals who are
insulated from the shifting winds of popular opinion and shortsighted
political passions. They must be committed to principled resolution of
contested questions that will often mix law with politics, freed of
the pressures of potential reprisal, and, perhaps above all, sensitive
to their own fallibility.

An exclusive focus on the dangers of a right-wing, interventionist
Court also ignores the arguably even greater risks of an autocratic
president who grabs and refuses to let go of power. It takes little
imagination to see the threat posed by leaving the executive branch,
especially with its control of the military, unchecked by an
independent and potent judiciary, especially when considering many of
the broad grants of authority that Congress has entrusted to the
presidency in a wide array of national security matters. As Justice
Robert Jackson observed during the Korean War, “comprehensive and
undefined presidential powers” can pose “grave dangers” to the
rule of law.

Cases like those involving the exclusion of Chinese immigrants in the
1880s and 1890s, the forced relocation and internment of Japanese
Americans in the 1940s, and the exclusion of Muslim immigrants during
the Trump presidency highlight the Supreme Court’s troubling
indifference to the plight of unpopular minorities and its
greenlighting of racial and religious discrimination in the name of
national security—just as it most recently gave its blessing to
discrimination based on sexual orientation in the name of free speech.
But the xenophobic, Islamophobic, and homophobic policies at issue in
these cases also show how the executive branch can be lethal to civil
liberties and why striving for a Supreme Court principled enough to do
better by minorities seems a far better path to pursue than abandoning
the idea of an independent guardian of them ever could be.

For all its failings, our Supreme Court has occasionally been such a
guardian, as when it changed course in 1943 to protect Jehovah’s
Witness children from being expelled from public school for failing to
pledge allegiance to the American flag in _West Virginia State Board
of Education _v._ Barnette_. Even during the Trump administration,
the Court blocked the Department of Commerce from putting a
citizenship question on the Census and prevented the Department of
Homeland Security from rescinding the Obama administration’s
Deferred Action for Childhood Arrivals program for failure to adhere
to the proper administrative procedures. As the former Justice
Department official Michael Dreeben put it in a recent article about
Israel’s judicial crisis, “When democracy hangs by a thread, too
deep inroads on judicial independence may cut that thread.”  Too
far an overcorrection invites an equally dangerous alternative.

A disempowered Supreme Court could also lead to even more blatantly
unconstitutional state action than what the current Court has
shamefully upheld. If it were unable to prevent a state from declining
to enforce federal law, then the one “supreme Law of the Land” as
described in the Constitution’s Article VI would no longer apply.
This is why the Court’s 2021 holding that Texas could circumvent the
Constitution by deputizing private citizens into a vigilante army
charged with enforcing the state’s draconian abortion ban deserved
condemnation, as Justice Sotomayor wrote in her dissent, as a
“dangerous departure” from the idea that “federal courts can and
should issue relief when a State enacts a law that chills the exercise
of a constitutional right and aims to evade judicial review.”

If the Supreme Court were unable to vindicate federal constitutional
rights in cases arising in the state courts, those courts could
routinely nullify such rights at will, just as slaveholders argued
they could in the antebellum period. As Oliver Wendell Holmes asserted
when endorsing federal judicial review over state court decisions
enforcing federal law:

I do not think the United States would come to an end if we lost our
power to declare an Act of Congress void. I do think the Union would
be imperiled if we could not make that declaration as to the laws of
the several States.

And restricting the ability of the Supreme Court (and presumably the
lower federal courts as well) to render definitive judgments about the
meaning and constitutionality of acts of Congress or of federal agency
regulations, either across the board or in particular categories,
would leave the highest courts of the fifty states with the last word
on those questions, creating an untenable patchwork quilt of answers
to questions that manifestly require a single answer for the nation as
a whole. Neither Bowie and Renan nor Moyn has yet to focus, at least
publicly, on those problems, but until they are addressed adequately,
the idea of disempowering the Supreme Court remains too cloudy to be
of great utility.

The impulse to reduce the Supreme Court’s centrality in American
life must thus be taken as at most a starting point for a broad and
complex political project. It also seems plain that just tinkering
with the details of how the Court operates, including reforms of the
ethical codes that should bind the justices no less than they bind
others throughout the government, fails to get at the heart of the
problem with giving an inherently political but politically
unaccountable body such sweeping power. No other highest court in any
other constitutional democracy gives nearly so much power to so few
people over the meaning of a body of law that is so difficult to
change through democratic means.

A larger but more challenging part of the solution is making the
Constitution less difficult to amend—such as by lowering Article
V’s requirement for proposing an amendment from two thirds to three
fifths of Congress and its requirement for ratifying an amendment from
three fourths to two thirds of the states. Or lowering Article V’s
requirement for calling a new convention for proposing amendments from
the current two thirds of the state legislatures to three fifths of
those bodies. Perhaps political momentum for so dramatic a reform
could be built around the Court’s failure to protect voting rights
or its reversal of a half-century of progress in protecting women’s
rights, the rights of racial minorities, and rights of bodily autonomy
and personal privacy, and around the goal of making antidiscrimination
more than an aspiration.

It may seem to be asking a great deal to expect a judicial body
accustomed to having the last word on all matters of federal law and
constitutional interpretation to loosen the reins somewhat. The
difficulty, apart from the reluctance of institutions to voluntarily
cut back their own power, is that this call for self-sacrifice would
be issued in the name of democratizing the legal and political system
of the United States. And to put it bluntly, it is alarming how
confidently, and often angrily, the justices in the current Republican
majority—and we mustn’t mince words here: the justices I’m
talking about have all been appointed by Republican presidents—have
acted in pursuing their antidemocratic ends. The arrogance dates back
over two centuries and cuts across the ideological spectrum, but its
weaponization in support of an antidemocratic project is strictly
right-wing and distinctly novel.

This problem of overconfidence serves as the central theme in Aaron
Tang’s _Supreme Hubris: How Overconfidence Is Destroying the
Court—and How We Can Fix It_. Tang describes the Court’s
self-assuredness as its central problem. Today’s Court—unlike the
Warren Court, which for instance conceded that
the _Miranda_ warnings were not necessarily required by the
Constitution—displays virtually no humility when rendering its
judgments, suggesting confidently that deep-seated controversies in
areas like abortion, affirmative action, gun control, and the future
of the administrative state can all be “lawyered through” using a
preferred method of interpretation like originalism. Flowing from this
overconfidence, as Tang would have it, are opinions that frequently
lack even minimal regard for their real-life consequences or even for
opposing arguments, leaving those who disagree with the rulings little
from which to derive much respect for the institution of the Court
itself.

I find it difficult to disagree with any of Tang’s descriptions or
with his diagnoses, including his skepticism that term limits,
supermajority requirements, or other structural changes will ensure a
rise in judicial modesty, but I must have missed the part describing
how such a rise can be secured. Tang seems convinced that those
concerned with the Court’s self-inflicted wounds can somehow
persuade the justices—perhaps by threatening to strip them of
jurisdiction—to act more incrementally and with greater humility. I
doubt it.

The current right-wing supermajority’s immodesty—and the low value
it places on traditional procedural mechanisms designed to ensure
thoughtful and broadly informed deliberation—seem particularly stark
when the Court takes what can only be described as shortcuts to end
programs and policies that it finds ideologically objectionable. As
Stephen Vladeck acknowledges in _The Shadow Docket_, the Court has
historically employed abbreviated filtering mechanisms—from
unexplained, one-line denials of discretionary review
(“certiorari,” in legal parlance) to relatively arcane tests for
deciding who may invoke the decision-making authority of the federal
courts (who has “standing”)—to turn away the vast majority of
petitioners’ cases without any consideration of who has the better
argument on the merits of the legal issues in question, let alone full
briefing and argument.

At the other end of the spectrum from such decision by nondecision, we
find decision by barely explained summary reversals of lower court
rulings, which come like bolts from the blue to parties given no
notice that their cases might be among the dozens lifted from the
typical yearly mass of thousands for sudden grants of certiorari and
are followed by no briefing or oral argument beyond the bare petition
seeking the Court’s attention and an opposition brief urging the
Court to deny review altogether. Such dispositions—whose uptick a
little over half a dozen years ago led the law professor William Baude
to borrow the term “shadow docket” from a Texas appellate lawyer,
Pamela Baron—are objectionable to Vladeck both because they
“short-circuit the Court’s normal process” and thereby risk
being ill-considered, and because they tend to offer little guidance
to the bar or to the public.

It is unclear whether Vladeck is upset mostly by the opacity and lack
of public accountability or even careful deliberation that seem to
attend the way much of the Court’s agenda is implemented through
inaction or through barely explained and certainly not openly reasoned
action; or by the right-wing agenda in whose service this lack of
transparency has been deployed of late; or by the increasingly
transparent hypocrisy with which doctrines that live mostly in the
shadows are being deployed. I suppose “all of the above” would be
a fair answer. At all events, the Supreme Court’s highly technical,
quite opaque, and readily manipulated standing doctrine seems
especially vulnerable to the charge that it has been deployed mostly
to advance the ideological proclivities of the right-leaning majority
and often of the most extreme wing of that majority.

However, the main story that Vladeck wishes to tell is how the
Court’s current procedures lack transparency as to the
reasons_ _for reaching the outcomes the Court does. Representative
rulings include the Court’s decision to grant emergency relief (and
shift standards of judicial review) during the Covid-19 pandemic, its
willingness to entertain the Trump-era solicitor general’s
“aggressive” use of emergency requests for relief, and its
last-minute interference in significant election disputes through the
use of its 2006 precedent _Purcell _v._ Gonzalez _(which defined
standards the Court would use to determine emergency election
challenges). Vladeck’s work highlights how consistently and
aggressively the Court, since Justice Barrett joined three years ago,
has stampeded procedure to reach desired outcomes. Though that story
has been told previously, Vladeck provides valuable evidence that this
Court’s behavior is different in kind from those that came before
it—in the procedures it uses to reach the results it seeks, but also
in the speed and frequency with which it does so.

To counter this nakedly nonjudicious behavior by the Court, Vladeck
proposes a modest set of legislative measures through which Congress
could, without endangering the Court’s vital independence or
compromising its capacity, significantly curb its use of the shadow
docket, including the one feature that has become so familiar that
most observers have come to treat it as inevitable: the Court’s
completely discretionary power to decide which of the many thousands
of petitions it will pluck from obscurity to consider on the basis of
full briefing and argument.

Chief Justice William Howard Taft, pleading in 1925 for relief from a
growing mountain of appeals, “cajoled Congress into giving the
Supreme Court far more control over which cases it hears by expanding
an obscure judicial practice known by the obscure Latin
term _certiorari_”—a degree of control without which the Court
would almost certainly not have achieved the vast influence over the
nation’s affairs that it came to exert in the years that followed.
As Vladeck wryly notes, certiorari is far from “the only way to
prevent the Court’s docket from swelling beyond control. Among lots
of other possible reforms, more justices could be added to handle the
workload”—a change many reformers, me included, have advocated on
other grounds—or “the Court could hear most cases in three-justice
panels, as is the norm in the intermediate federal appeals courts,”
or “Congress could add another layer of appeals courts to further
reduce the strain on the Supreme Court.” It is with hard-headed
suggestions like these, defensible without reference to ideology but
attractive to many readers on admittedly ideological grounds, that
Vladeck justifies his attention to “how procedural technicalities
and formalities can produce massive substantive results.”

The Court’s low level of public esteem today means that marginal,
process-focused reforms such as reducing the use of the shadow docket
will be insufficient to reverse the course of the destabilizing forces
currently driving our republic toward government of the few, by the
few, and for the few.  As attacks mount on America’s fragile
democracy and on the foundation of human rights that has always been
at best aspirational in our history, we cannot afford to rely on mere
tinkering with the machinery of justice to hold back the darkness. The
looming possibility that a tyrannical executive will seize authority
in the coming years and that such an executive’s violent followers
will not soon relinquish their hold on power—coupled with the ironic
reality that an overconfident Supreme Court will prove so weakened by
its own excesses that it will be unable to contain the forces of
fascism—leave those of us who are unwilling to give up hope with our
hands more than full. The work ahead cannot be left to judges alone,
even with a Supreme Court enlarged and rebalanced so as to overcome
its current waning legitimacy. It is, as always, work that belongs to
us all.

_LAURENCE H. TRIBE is the Carl M. Loeb University Professor Emeritus
and Professor of Constitutional Law Emeritus at Harvard. His books
include Abortion: The Clash of Absolutes, American Constitutional
Law, The Invisible Constitution, and Uncertain Justice: The Roberts
Court and the Constitution, cowritten with Joshua Matz. (August 2023)_

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