At the beginning of this year, I published this piece about the appropriate (institutionally, democratically) response to Dobbs. It’s a long piece, but the relevant part today comes at the end (excerpt here). The essential argument —made undeniable by the Court’s overturning of Chevron (and see Kagan’s brilliant dissent) — is this:
The Supreme Court has entered yet another stage of illegitimacy. It’s happened before. One might have hoped it would not happen again. But it has. The Court has become an activist, democratically untethered institution, remaking broad swaths of constitutional and statutory law, without any constitutional or democratic justification.
No doubt, there have been times before when the Court has acted with similarly extraordinary consequence. 1937 is perhaps the most dramatic example, when the Court reversed its earlier, much more restrictive position on federal and state power. But the difference between that remaking and the one we’re seeing today is that today’s has no democratic support behind it. As Steven Levitsky and Daniel Ziblatt describe in their truly fantastic book, The Tyranny of the Minority, this Court is the product of the very minoritarian structures that this Court has allowed to continue within this democracy. My favorite passage from their book is this:
Imagine an American born in 1980 who first voted in 1998 or 2000. The Democrats would have won the popular vote in every six-year cycle in the U.S. Senate and all but one presidential election during her adult lifetime. And yet she would have lived most of her adult life under Republican presidents, a Republican-controlled Senate, and a Supreme Court dominated by Republican appointees. How much faith should she have in our democracy?
The willfulness of this Court itself is just stunning. One might have thought that the Court would have recognized the illegitimacy in the supermajority status of its conservatives and acted in response with humility. Instead, the conservative majority has acted with hubris — willfully imposing a radically different vision of the Constitution and separation of powers, one not grounded in clear, original principles but simply reflecting a different political view of the Constitution and Congress. This is activism in precisely the sense that the “modern conservative judicial movement” rejected; they have become exactly what they were born attacking.
This is the thing that people miss about originalism. The modern conservative judicial movement was grounded in judicial restraint. The only sanction, conservatives insisted, for a court overruling a legislature was a clear commitment in the Constitution that was inconsistent with some law. Absent such a commitment, no court, within a democracy, could legitimately interfere with the laws of a democratic legislature. “The judge must stick close to the text and the history,” Robert Bork famously wrote, “and not construct new rights.”
Originalism complemented this theory of restraint with a theory of interpretation. As Charles Fried, Ronald Reagan’s second Solicitor General, put it,
“[t]he concept of originalism speaks to the most basic legal question: by what authority do judges impose their views on the people, even to the point of striking down laws made by the people’s elected representatives?”
If you believe, as the most prominent judicial originalists believed, that history constrains (Fried did not), originalism was activism’s remedy. As Justice Scalia put it:
“[t]he main danger in judicial interpretation of the Constitution . . . is that the judges will mistake their own predilections for the law.”
“Nonoriginalism,” he insisted, “plays precisely to this weakness.” And though Scalia conceded that such history was “difficult,”
the question to be decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitution-writing; but whether it is the best means available in an imperfect world.
Well, as it turns out, originalism has evolved to become a very imperfect “means of restraining [plutocratic] judicial Constitution-writing.” As it turns out, power corrupts, absolute power corrupts absolutely, and a 6–3 majority on the Supreme Court has corrupted absolutely any pretense that this is a conservative judicial movement — in the original sense of that term.
The long sweep of Supreme Court history — and here’s my 600-page (ugh!) telling of this story, written before 2020 — teaches that this frolic and detour, too, will end. The Court is once again walking itself down the illegitimacy plank; once again, it will recognize at some point that it needs to retreat. No doubt, too late for critical environmental policy or for the protection of fundamental liberties. But always, eventually, it returns, usually chastened by the damage it has done.
But here’s where the end of my article from this year is relevant today:
Assuming (what seems less and less probable) that there is a clear majority in Congress next year and a President committed to restoring judicial restraint, we need to begin to think about the strategy for effecting that restraint.
The Justice Department, in particular, needs to begin to think about the strategy to get the Court to restore its practice of judicial restraint. It was, after all, the Justice Department’s Office of Legal Policy, in the period leading up to Ed Meese becoming Attorney General in 1985, that birthed originalism as a strategy for effecting judicial restraint. Justice Sam Alito was a member of that department and an original architect of the strategy that he most egregiously now betrays.
There needs to be a new agenda for OLP, or some equivalent, focused on the strategy that could best restore recognition in this Court that it is acting beyond its appropriate mandate. That strategy would include framing cases to call out the inconsistency and hypocrisy and should include legislation to de-fang the Court’s most egregious behaviors.
This isn’t the sort of fight that would be won with a single argument. It isn’t about a single case. It must instead begin with a comprehensive strategy to get this Court to recognize that it must stand down, and once again yield to the democratic process. And not just the “manufactured majorities” (Levitsky/Ziblatt 181) that have created this most extreme Court, but the suppressed majorities that are increasingly skeptical of this so-called Republic — by which our framers meant a representative democracy, and which, by “representative,” they meant majoritarian. That commitment by them, the framers, this Court now betrays—willfully and proudly, and there’s a quote here about pride before a fall, but I’ll just leave unstated.
