The narrowly “textualist” and “originalist” principles to which Barrett subscribes, inevitably carry conservative political implications. From such a mindset, any legislation that would expand health insurance, union rights, environmental regulation, as well as abortion access is likely in deep trouble. For Feldman, however, Barrett’s “views about how to interpret the law that I think are wrong and, in certain respects, misguided” are more than balanced by her being among the best and brightest in her cohort. Ah, if only we could use the LSATs to choose all our federal officials!
What steps might a Democratic Congress, take in 2021 to protect the country from a judicial super-majority defined by Justices Roberts, Alito, Thomas, Gorsuch, Kavanaugh, and Barrett? Most journalistic commentary has centered on “court-packing” ideas harkening back to President Franklin Roosevelt’s ultimately foiled attempt in 1937 to expand the court from nine to as many as fifteen justices to prevent its undoing his entire New Deal program. This was (and remains) a messy solution, for it turns public scrutiny from an undemocratic, reactionary judicial branch to a seemingly overreaching executive authority.
In FDR’s case, historians suggest, the mere threat of radical judicial surgery proved enough to temper the impulse towards judicial review, and for decades the court largely refrained from countermanding major economic law-making by state and federal legislative majorities. On the other hand, the bitter political after-taste from the court-packing fight helped to fuel a Republican resurgence in Congressional elections to come.
But historical antecedents to the court-packing plan offer other keys to a still-useable past. By the 1920s, the Supreme Court had truly become a bulwark of corporate privilege, acting against limitations on union blacklisting in Kansas in 1915, overturning the federal child labor law in 1918, and throwing out a minimum wage for women workers in Washington D.C. in 1923. Chief Justice and ex-President William Howard Taft (1921−1930) cheered on such moves by openly railing against “socialist raids upon property rights.”
As the courts increasingly detached themselves from public opinion on key issues of national welfare, they came under increasing criticism from progressive circles. Indeed, with a focus on mis-use of injunctions and contempt citations in labor disputes, Theodore Roosevelt’s Progressive Party in 1912 prioritized “restriction of the power of the courts as shall leave to the people the ultimate authority to determine fundamental questions of social welfare and public policy.” The Socialist Party led by Eugene V. Debs went further, advocating a constitutional amendment to abolish judicial review of legislative acts altogether.
Two tangible national reform ideas followed in the next decade. As documented by historian Steven F. Lawson, Wisconsin’s Progressive Senator Robert “Fighting Bob” La Follette introduced a constitutional amendment in 1922 (never put to a Congressional vote) whereby Congress would have the right to re-enact –and thus enact for good — any law ruled unconstitutional by the Supreme Court. In the same year, Republican Sen. William Borah of Idaho proposed a different reform tack: hoping to restrict judicial review to only the most egregious violations of individual rights, his plan required any judicial override by the Supreme Court to carry at minimum a 7 to 2 court majority.
Beyond grappling with a single Supreme Court appointment, it behooves today’s progressives to challenge all those still infected by what the eminent judicial biographer Alpheus Mason in 1958 labeled the “cult of the judicial robe.” As La Follette aptly warned, “[Should the Court keep] the final and conclusive authority to determine what laws Congress may pass, then, obviously, the Court is the real ruler of the country exactly the same as the absolute King would be.”