By now, it should be abundantly clear that our antiquated Constitution, written over two centuries ago by white men to govern a small, slave-dependent republic huddled along the Eastern Seaboard, does not meet the needs of the sprawling, multiethnic, and complicated country that we have become.
For anyone who doubts this proposition, consider the following facts. In two out of the last six presidential elections, a candidate became president even though he lost the popular vote. Virtually all of the money and attention in presidential elections are devoted to a tiny number of swing states that determine the outcome. The Constitution vests in state legislatures the power to appoint presidential electors whether or not they are chosen by a popular majority—a power that Donald Trump tried to take advantage of in 2020, and may well take advantage of in 2024.
Additionally, nine individuals, appointed for life and responsible to no one, regularly make crucial and unreviewable decisions about matters such as the structure of health care in the United States, the nature of marriage, the right of women to reproductive justice, and the powers of the federal government and the states. All the justices on the Supreme Court insist that they are neutral and apolitical public servants who do no more than follow “the law” as it is written. Yet they are nominated by a process drenched in raw partisanship, and their votes regularly align with the partisan views of the people who appoint them. Republican presidents have appointed 15 of the last 22 justices to the Supreme Court, even though they won the popular vote in only five of the last 15 elections. The last Democrat to serve as chief justice was Fred Vinson, whose brief and largely undistinguished career ended almost 70 years ago.
The Constitution protects the rights of people who want to make movies catering to individuals who get sexual pleasure from witnessing the sadistic crushing of innocent animals. Yet it doesn’t explicitly protect the rights of women, and it does nothing to protect the rights of all of us to live in a world that is not ravaged by global warming.
Huge popular majorities favor measures including more effective gun regulation, limitations on campaign spending, and reductions to the cost of prescription drugs, yet because of the political structures that the framers imposed on us, we are unable to accomplish those objectives.
These facts, and many more like them, should make any sensible person skeptical about our Constitution and about the role it plays in modern political culture. And yet constitutional skeptics almost never get a fair hearing. Instead, American politics is saturated by reverence for an ancient and anachronistic document, written by people who in many cases owned other human beings, and never endorsed by a majority of the inhabitants of our country.
Liberals and conservatives, Democrats and Republicans, Congress members and Supreme Court justices, all insist on their own partisan versions of constitutional obedience while our political culture collapses, crucial public needs go unmet, and the ties that bind us together as a country fray. We need to understand that conventional constitutionalism is irrational and wrong. It attaches religious significance to a decidedly secular and deeply flawed document. It is standing in the way of saving our country. It has got to stop.
Perhaps the most inviting target for constitutional skepticism is the United States Supreme Court. There is no necessary association between the Supreme Court and American constitutionalism. All federal officeholders take an oath to support and defend the Constitution, and one could imagine a system in which the Constitution was enforced by Congress, the president, and state officials. Still, in American constitutional culture, the Supreme Court has assumed such a central role that it is often taken to be the embodiment of constitutionalism.
The justices themselves do everything they can to promote this image. They protect their reputation by working in secret. According to hallowed tradition, no one other than the justices attends the sessions where cases are actually decided. The justices rarely hold press conferences or make public statements. Moreover, the quasi-religious claptrap that surrounds the court—the robes the justices wear, the marble temple in which they are housed, the solemnity and formality of the oral arguments that they conduct—is meant to symbolize the grandeur, neutrality, impersonality, and majesty of the law, and of the Constitution whence it derives.
An interlocking web of myths buttresses this imagery. The justices are thought to be brilliant jurists who work extraordinarily hard. They are wise women and men who take the long view and are above the petty squabbling that engulfs the rest of the government. They are apolitical public servants who lead monastic existences devoted solely to the rule of law. Their independence guarantees that they are answerable to no political party or faction, but solely to their conscience and to the US Constitution.
All of this is arrant nonsense. Historically, the Supreme Court of the United States has been populated mostly by people of decidedly ordinary intellect and ability who have gotten pretty cushy jobs through their political connections. The notion that independence—insulation from political accountability—guarantees that justices will be motivated by devotion to the law rests on a logical fallacy and has little empirical support. In fact, unaccountability produces just what one would expect: a freedom to indulge personal quirks and obsessions.
Here are just a few examples of the judicial failings that should give any thoughtful court observer pause:
§ In the early 19th century, John Marshall saw no problem with serving as secretary of state and chief justice of the United States at the same time. In perhaps the most famous case in American legal history, Marbury v. Madison, Marshall as chief justice ruled on the legal implications of actions taken by Marshall as secretary of state.
§ Also during the 19th century, Justice Henry Baldwin was hospitalized for “incurable lunacy” and missed an entire term of the court. He nonetheless returned to the bench and remained on the court for years. Richard Peters Jr., the Supreme Court’s reporter of decisions, stated that “most courtroom observers of Baldwin agreed that ‘his mind is out of order.'”
§ Justice Robert Grier, who had suffered a disabling stroke, cast the deciding vote in one of the most crucial decisions in American history, holding that Congress lacked the power to make paper money legal tender. Unfortunately, it appears that he acted without having any clear idea of what case he was voting on.
§ Justice James McReynolds was a notorious racist and anti-Semite. He was unremittingly hostile to his colleague Louis Brandeis because Brandeis was a Jew. When Charles Hamilton Houston, the renowned African American civil rights attorney, argued before the court in 1938, McReynolds turned his back on him. He also referred to Howard University as the “[n——] university.”
§ Justice Charles Whittaker was often unable to decide how to vote or to keep up with his work. Once, when assigned to write a majority opinion, he ended up turning the task over to Justice William O. Douglas, who, out of pity, ghostwrote it for him even though Douglas had also written the dissenting opinion.
§ Shortly after he was confirmed as a justice, Hugo Black faced a huge scandal about his membership in the Ku Klux Klan. Reporters for the Pittsburgh Post-Gazette discovered that although he had officially resigned from the Klan at the beginning of his campaign for the US Senate, Black rejoined the organization and was given a lifetime membership.
§ After becoming an associate justice, Abe Fortas regularly provided advice to his former client, President Lyndon Johnson, even though the Johnson administration was often a party before the court. Fortas was forced to resign when it became known that he had accepted payments from various interests with potential business before the court.
§ While serving as a law clerk for Justice Robert Jackson, William Rehnquist prepared a memorandum arguing that the court should reaffirm the “separate but equal” doctrine announced in Plessy v. Ferguson. When confronted with the memo at his confirmation hearing, Rehnquist swore under oath that, contrary to what the memo in fact said and despite persuasive evidence from contemporaries, it did not reflect his personal views.
§ During oral argument in an employment discrimination case, Chief Justice Warren Burger announced that women were better at secretarial work than men were. He reportedly told his law clerks that Blacks made talented gardeners because they had a great sense of color, but that they could not get mortgages the way Jews did because Jews were generally more able and trustworthy. Women should not be allowed to serve as judges in rape trials, he added, because they were too emotional and incapable of fair judgment.
There are enough examples of this sort of behavior to be troubling. (And this is without touching on the misconduct of modern justices—for example, Brett Kavanaugh’s bizarre and likely perjurous testimony before the Senate Judiciary Committee, or Clarence Thomas’s blatantly partisan extrajudicial diatribes.) Moreover, the secrecy that surrounds the court means that we have no way to know how many other instances of incompetence, misconduct, or florid eccentricity have influenced the court’s work. Still, I do not mean to claim that these examples are representative. No doubt most justices have done their best at what is a difficult job.
In some ways, the more serious problem is not flagrant incompetence or mendacity but plain-vanilla mediocrity. For every Louis Brandeis, there are many Sherman Mintons. For every William Brennan, there are many Gabriel Duvalls. The truth is that most of the justices have gained their seats because of inside connections, political deals, or ideological commitments. Their performance on the bench is consistent with what one would expect from individuals selected on this basis.
If one looks at paper credentials, the modern court scores higher than the historical average. All of today’s justices have distinguished academic records, and there is no reason to doubt their intelligence. That said, their range of experience is limited. None of the justices has had to meet a payroll for a private business or make decisions outside of a huge bureaucracy. None has run for or served in elective office. Although the Supreme Court hears many criminal cases every year, no sitting justice has ever served as a criminal defense attorney, although this will change when Ketanji Brown Jackson joins. The court regularly decides technical and complex cases about specialized matters like patent law and employee benefits law, but no sitting justice has devoted significant time to studying these matters. The court’s opinions routinely rely on empirical assumptions, but the justices appear woefully ignorant of statistical method. There is little evidence that many of them know much about the social sciences, much less about philosophy, literature, or the hard sciences.
Perhaps more significantly, no one should confuse the justices with apolitical and neutral students of jurisprudence. Many of them got their jobs because they were connected to politically powerful figures. Consider in this respect Justice Antonin Scalia’s unintentionally damning defense of his failure to recuse himself from a case in which Vice President Dick Cheney was a named party after Scalia had gone duck hunting with him:
Many Justices have reached this Court precisely because they were friends of the incumbent President or other senior officials—and from the earliest days down to modern times Justices have had close personal relationships with the President and other officers of the Executive. John Quincy Adams hosted dinner parties featuring such luminaries as Chief Justice Marshall, Justices Johnson, Story, and Todd…. Justice Harlan and his wife often “stopped in” at the White House to see the Hayes family and pass a Sunday evening in a small group, visiting and singing hymns. Justice Stone tossed around a medicine ball with members of the Hoover administration mornings outside the White House. Justice Douglas was a regular at President Franklin Roosevelt’s poker parties; Chief Justice Vinson played poker with President Truman.
Modern justices have also been cozy with political figures, and their prior service has established deep ties of personal and political loyalty. Here are some examples:
§ In his younger years, Chief Justice John Roberts served as associate White House counsel for Ronald Reagan and as the principal deputy in the Solicitor General’s Office for George H.W. Bush.
§ Justice Samuel Alito worked as assistant solicitor general and at the Office of Legal Counsel under Reagan.
§ Justice Stephen Breyer worked in the Johnson Justice Department and was special counsel to the Senate Judiciary Committee while it was under Democratic control.
§ Justice Elena Kagan befriended Barack Obama while they were both teaching at the University of Chicago Law School. She went on to serve as special counsel to the Senate Judiciary Committee under Joe Biden, as associate White House counsel and deputy assistant to the president for domestic policy under Bill Clinton, and as solicitor general under Obama.
§ Justice Kavanaugh drafted the Starr Report, which claimed that Clinton had committed potentially impeachable offenses; worked for the George W. Bush campaign on the Florida recount in 2000; and served as Bush’s staff secretary in the White House.
There is nothing dishonorable about service in any of these positions. Still, it strains credulity to believe that the justices suddenly shed their political predispositions upon assuming the bench.
None of this would matter much but for the fact that the justices exercise extraordinary power—and throughout the court’s history, they have used this power to render many, many truly terrible decisions. This is not the place for a comprehensive history of the Supreme Court, but some highlights from that history convey a sense of the role that the court has played in our political and legal culture.
In the earliest days of the republic, Federalist judges, including Supreme Court justices, vigorously enforced the Alien and Sedition Acts, which criminalized criticism of the president and resulted in the jailing of opposition leaders throughout the country.
In the run-up to the Civil War, the court consistently sided with slave owners. For example, in Prigg v. Pennsylvania, Justice Joseph Story, writing for the court, held that a Pennsylvania law that prohibited the extradition of African Americans for the purpose of enslaving them was unconstitutional. In the Dred Scott decision, Chief Justice Roger Taney, writing for the court, held that even free African Americans could not be citizens of the United States and that Congress’s efforts to outlaw slavery in the territories were unconstitutional.
After the Civil War, Congress enacted Reconstruction legislation that amounted to a comprehensive program to eradicate the “badges and incidents of slavery” and to protect the newly freed men and women from violence and discrimination. Fearful of judicial interference, the Reconstruction Congress enacted the 14th Amendment to insulate its program from constitutional attack. Unfortunately, the court read the amendment in an indefensibly narrow fashion and proceeded to invalidate much of the Reconstruction program.
When political pressure on the South eased, Southern states enacted a comprehensive system of racial apartheid. In Plessy v. Ferguson, the court, in an infamous opinion by Justice Henry Billings Brown, found that this “separate but equal” regime was constitutionally permissible.
The court did no better at enforcing civil liberties during this period. Throughout the 19th century, it regularly ignored infringements on speech and free exercise rights. In an especially shameful decision, the court gave its approval to a massive eugenics program that resulted in the forced sterilization of thousands of women.
With American entry into World War I, the Wilson administration embarked on a vigorous program to suppress dissent, utilizing the Espionage Act of 1917 and Sedition Act of 1918 to jail many opponents of the war. The court upheld these convictions in every case that came before it, including the conviction of the Socialist Party leader Eugene Debs, who received millions of votes for president while sitting in a jail cell.
In the late 19th and early 20th centuries, populism and progressivism emerged as an important political force, and state governments began to enact various forms of economic regulation. For example, state statutes mandated minimum wages and maximum hours; prohibited “yellow dog contracts,” which prevented workers from forming unions; and provided for the price regulation of public utilities. The Supreme Court’s response to these reforms was uncertain and inconsistent but, in general, hostile.
In 1905, for instance, the Supreme Court decided Lochner v. New York. According to the court, a state statute protecting employees of bakery shops from having to work more than 10 hours per day and 60 hours per week violated the “freedom of contract” protected by the 14th Amendment’s due process clause. And Lochner was hardly an outlier. In all, between 1905 and 1930, the court invalidated some 200 statutes imposing economic regulation.
Concern about the court’s ideological motivations came to a head during the New Deal period, when the court blocked some important New Deal programs and threatened to invalidate many more. After his overwhelming victory in 1936, President Franklin Roosevelt moved to discipline the court by increasing its size from nine to 15 justices. Congress ultimately rejected the proposal, but the court more or less backed off from confrontation with a popular president. Roosevelt remained in office long enough to appoint eight justices, and these appointments inaugurated a period during which the court abstained from interfering with economic regulation.
At the same time, the Roosevelt Court’s defense of civil liberties was, at best, spotty. The court occasionally defended the rights of unpopular speakers, but in moments when civil liberties were at greatest risk, it refused to intervene. After the Japanese attack on Pearl Harbor, the Roosevelt administration ordered the exclusion of thousands of Japanese American citizens from their homes. The Supreme Court held that the action was constitutionally permissible, even though the exclusion was based solely on ethnicity and the excluded individuals were given no opportunity to demonstrate their loyalty.
When the McCarthy panic hit the country in the postwar period, the liberal justices again caved to public pressure. They acceded to the criminal convictions and firings of scores of people because of their political affiliations.
Due to a series of historical accidents, by the late 1950s power on the court had shifted to justices who viewed themselves as legal reformers. During the brief heyday of the Warren Court, the justices acted vigorously to dismantle racial apartheid in the South, reform the criminal justice system, protect the free speech rights of dissenters, require equality of population in voting districts, and provide some constitutional protection for poverty-stricken Americans. Even after Chief Justice Earl Warren had retired and a conservative president had somewhat changed the complexion of the court, it rendered pathbreaking decisions protecting reproductive autonomy and attacking gender discrimination.
A half-century later, the Warren Court’s hold on the American imagination remains strong. For many conservatives, the Warren Court remains an exemplar of arrogant and lawless judicial overreach. Its more important impact, though, has been on the attitude of many progressives. Anyone looking at the entire sweep of the court’s history would understand that the court has pretty consistently stood with the most shortsighted and venal impulses in American society. Still, the Warren Court interregnum supports the hope that if only the right justices could somehow be appointed, the Supreme Court might yet be an engine driving us toward the Preamble’s promise that we “establish justice.” That hope, in turn, softens the criticism that many progressives might otherwise direct toward the court.
In evaluating this hope, it is important to emphasize two points about the Warren Court. First, this judicial Camelot did not last very long—effectively only 10 years. Second, for all its ambition, the Warren Court’s actual accomplishments were limited and fragile. Dismantling the Jim Crow system was an important achievement, but as many scholars have pointed out, the court’s orders were widely ignored. Real change did not come until Lyndon Johnson’s huge victory in the 1964 election and the breaking of the Southern stranglehold on Congress.
Many other Warren Court reforms were similarly vexed. The court addressed some of the worst manifestations of police violence and lawlessness, but it also invented the concept of “qualified immunity” for government officials who violated civil rights, thereby shielding them from meaningful legal accountability. It was Chief Justice Warren himself who wrote for the court in Terry v. Ohio to endorse the “stop and frisk” tactics that resulted in the systematic harassment of millions of Black men.
The Supreme Court’s history is important and often misunderstood, but the crucial question to answer is how the court operates now and how it is likely to operate in the immediate future. Unfortunately, whatever our experience during the Warren Court era, the modern Supreme Court has returned to its historical role as the defender of class privilege, racial hierarchy, and misogyny. From the invalidation of campaign finance legislation, to the hobbling of efforts to control climate change, to the recent threat to abortion rights, the justices have allied themselves with the most reactionary forces in American life.
So what is to be done? In the wake of the Senate’s unprecedented refusal to consider President Obama’s nomination of Merrick Garland to the court and the debacle surrounding the nomination of Brett Kavanaugh, academics and political figures have proposed a variety of reforms. The simplest to implement would be an expansion of the court’s size. The Constitution does not require that there be only nine justices, and the court’s size has varied throughout our history. A variant of this proposal would allow the court’s size to fluctuate so as to allow each administration a set number of appointments.
Other, more complex proposals would change the court’s functioning in dramatic ways. For example, the political analyst Norman Ornstein has proposed 18-year term limits for Supreme Court justices, with a justice then relegated to service on the lower courts so as not to run afoul of the constitutional guarantee of life tenure. Former presidential candidate Pete Buttigieg has borrowed from a far-reaching proposal advanced by law professors Daniel Epps and Ganesh Sitaraman. Under this scheme, there would be 15 justices, with 10 equally divided between the two parties and those 10 choosing the remaining five.
Here are some other proposals that the Supreme Court itself could adopt in the unlikely event that it were so inclined:
§ Ditch the robes and the “Your Honors.” Supreme Court justices are not gods or priests; they are ordinary human beings. In a country without an aristocracy, respect should never be based on station. Instead, it must be earned and is always held provisionally. The justices should act, and should be treated, like every other citizen.
§ Require a seven-justice majority to invalidate a statute. Nothing in the Constitution mandates majority voting by the justices; indeed, by internal rule, the court has deviated from majority voting in deciding whether to grant review over cases. More than 100 years ago, the famed Harvard Law School professor James Bradley Thayer wrote that a statute should be invalidated only when its unconstitutionality was “so clear that it is not open to rational question.” A way to institutionalize Thayer’s insight is to require at least a seven-justice majority to invalidate a statute. If three justices think that the statute is constitutional, it is hard to say that their judgment is “irrational.” Why, then, should the judgment of six justices prevail over the collective judgment of three of their colleagues and the political branches?
§ Media coverage. For years, there has been argument about whether the Supreme Court’s oral arguments should be broadcast live on television. The court seems to be moving haltingly in this direction, but this change does not go nearly far enough. Secrecy surrounding the court’s operations has produced sloppiness and misconduct that would never be tolerated if subjected to the disinfectant of sunlight. The Supreme Court’s conferences should be offered for live broadcast. I know, I know—how are the justices supposed to be candid with each other if every word they speak is made public? But, for goodness’ sake, these folks have life tenure. What is this protection for, if not to allow them to say what they think without worrying about retribution? If the justices in fact feel a little pressure to think more carefully about what they say in conference, this would be a good result rather than a bad one.
§ Draft opinions. The court should release draft opinions for public comment before they are finalized. Why not? Administrative agencies have functioned this way for years. Congress does not usually keep important legislation secret until it becomes law, and when it tries to do so, it is subject to harsh criticism. It is terrifying that the court produces major legal documents in final form without giving interested parties the opportunity to point out errors and suggest revisions.
§ Reverse oral arguments. After the draft is made public, the court should conduct reverse oral argument, whereby lawyers for each side can question the justices about the opinion. Why is it only the justices who get to ask the questions? A reverse oral argument, with the advocates posing the hypotheticals and testing limits, might uncover unintended consequences or flabby argumentation. Moreover, forcing the justices to defend their opinions is bound to provide more incentive to think carefully about what they are doing.
Will the Supreme Court adopt these reforms on its own? Don’t bet on it. We face a classic chicken-and-egg problem: The justices have power, and their power rests on mystification. We can hardly expect the beneficiaries of this system to dismantle it voluntarily. It does not follow, though, that debate about these proposals is pointless. The necessary first step toward forcing the court to give up its power is to delegitimize the court in the eyes of the public. And the first step in accomplishing that objective is asking why, exactly, the justices are so terrified of reforms that would end the pervasive mystification that encases the court’s work. Even considering proposals like these punctures the pomp, pretension, and grandiosity that supports the court’s power.
More than that, thinking about these proposals reveals the sheer ridiculousness of the court. Yes, we need to advance reasoned arguments for why this institution is harming the country. But more than just argument is required. The court should be the object of derision, mockery, and contempt. We need to start making fun of the pomposity and pretensions of the justices.
If we can bring ourselves to see through its pomposity and pretensions, perhaps the Supreme Court will lose its power over us. Once it does, the American people can begin the serious work of debating what it would take to establish justice—work that cannot and should not be delegated to an arrogant elite in robes.