Did they rediscover the principle that Congress gets to write the laws, not the Supreme Court?
Was this a one-off and the two Republican nominees will soon go back to using their power to cement into law positions held by billionaires and industry over the interests of average people and voters?
Or did they bow to public opinion?
Was the steady torrent of corruption revelations among the Republican justices — from Roberts’ wife making over $10 million hustling lawyers into law firms that practice before the Court, to Thomas’ million-dollar vacations and mother’s rent-free life, to Alito’s paid speeches, Gorsuch’s and Barret’s fealty to the fossil fuel industry that his mother and her father served, and Kavanaugh’s alleged gambling debts — what pushed them to step back from what would have been an explosively controversial decision?
The rightwing Republican justices have to know that their decisions are incredibly unpopular. Just yesterday The New York Times ran an article pointing out that they’re often completely out of step with American popular opinion.
The Dobbs ruling on abortion and various gun control rulings are the poster children for this disconnect, and every term brings new outrages from the rightwingers on issues from clean air and water to labor rights to Republican assaults on democracy.
It’s entirely possible that this break with history in the gerrymandering case is a one-off, but it’s also possible other factors are at work.
They include public opinion about the cases and issues themselves, pressure from Democrats in Congress and the White House, and the waning influence of billionaires on people with lifetime tenure.
Congress also fired a shocking cannonball across the bow of the Court with the legislation to lift the debt ceiling, declaring that parts of it could not be reviewed by the Court. This may have been the final straw; I’ll get to that toward the end of this article.
But first the backstory: it’s fascinating and may well show the truth of Twain’s apocryphal quote that history doesn’t repeat but often rhymes. I detail the entire story in my book The Hidden History of the Supreme Court and the Betrayal of America, but here’s a quick synopsis.
The last time the Supreme Court experienced such a crisis of confidence with the American people was in the 1935-1937 era, and the way it resolved is fascinating.
Back then, four of the justices, Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, were collectively known as the Four Horsemen. They were invariably joined by one of the other justices — most frequently Owen Roberts — to strike down President Franklin D. Roosevelt’s popular New Deal legislation that attempted to address unemployment and poverty.
The Four Horseman claimed to be originalists or “strict constructionists” who somehow could read the Founders’ intent from the Constitution, disregarding the historical reality that the founders were not even remotely of a single mind.
Ideologically, these four justices were the predecessors of conservative ideologues on the Supreme Court such as Samuel Alito and Antonin Scalia. Economically, they embraced laissez-faire economics and rejected any federal powers that were not explicitly granted by the US Constitution.
For 40 years during the preceding Lochner era, the Court had struck down dozens of state laws protecting workers, including women and children. During the period between 1897 and 1929, the Court was ruling largely with the booming industrialist economy and its conservative members saw the labor movement as disruptive rather than positive.
However, with the onset of the Great Depression, these industrialists lost the popular support they had enjoyed in the aftermath of the Haymarket bombing — but the ever-conservative Supreme Court had not caught up with popular opinion.
In 1935, the Supreme Court ruled that both the Agricultural Adjustment Act and the National Industrial Recovery Act were unconstitutional. The rulings gutted a large piece of Roosevelt’s New Deal legislation.
The Agricultural Adjustment Act had passed in 1933 with 73 percent of the House of Representatives voting for it. The bill passed the Senate with 64 percent of the Senate voting for it. After it was struck down, William Leuchtenburg writes for Smithsonian magazine:
“Many farmers were incensed. On the night following [Justice Owen] Roberts’ opinion, a passerby in Ames, Iowa, discovered life-size effigies of the six majority opinion justices hanged by the side of a road.”
The National Industrial Recovery Act, with its famous “Blue Eagle” logo, had likewise passed with 80 percent of the House voting for it and 70 percent of senators voting for it.
When the Supreme Court used its power of judicial review to overturn these laws, it wasn’t just viewed as an assault on FDR’s New Deal. It was, in the opinion of many Americans (and FDR himself), an assault on the very basis of our democratic republic.
Shortly before Roosevelt was reelected in 1936, the Court went even farther and struck down a New York State law that established a minimum wage for women and children in Morehead v. New York ex rel. Tipaldo. The pendulum of popular opinion swung against the Court almost overnight. One Republican newspaper in New York declared its opposition to the ruling:
“The law that would jail any laundryman for having an underfed horse should jail him for having an underfed girl employee.”
As historian David B. Woolner, author of The Last 100 Days: FDR at War and at Peace, noted:
“Over … 13 months, the court struck down more pieces of legislation than at any other time in U.S. history.”
In 1937, the National Labor Relations Act (cementing workers’ right to join a union and the right of unions to exist) and the Social Security Act were on their way to the Court. Considering how the Four Horsemen had ruled during FDR’s first term, Roosevelt knew that he needed to do something or risk losing both pieces of legislation along with the collapse of his entire New Deal agenda.
With the New Deal on the line, Roosevelt went on the attack. On February 5, 1937, just months after his landslide reelection, he announced his plan: he asked Congress for the authority to appoint one new justice for each justice then on the bench over 70 years old.
In 1937, the average life expectancy for men in the United States was only 58 years. The average age of the Supreme Court justices at the time was 71 years old, and six of the justices were 70 or older. A book mocking the court, called The Nine Old Men, “was rapidly moving up the bestseller lists.”
Roosevelt’s plan took advantage of that public opinion that the age of the justices was negatively affecting the Court’s decision-making along with the Court’s ability to quickly rule on cases.
FDR directly called into question the “capacity of the judges themselves” to dispose of the growing number of cases facing federal courts. The United States’ population had nearly doubled between 1900 and 1936, and the number of cases facing federal court dockets had exploded. Citizens were waiting longer and longer to go in front of older and older judges.
Roosevelt’s plan would have immediately given him six appointments to the Supreme Court and up to 44 appointments for federal lower courts. Roosevelt argued that “a constant and systematic addition of younger blood will vitalize the courts.”
On March 9, 1937, Roosevelt told the nation that the Court was ruling not just against himself and Congress, but against the will of the American people, themselves.
“Last Thursday I described the American form of Government as a three horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government—the Congress, the Executive and the Courts.
“Two of the horses are pulling in unison today; the third is not. Those who have intimated that the President of the United States is trying to drive that team, overlook the simple fact that the President, as Chief Executive, is himself one of the three horses.
“It is the American people themselves who are in the driver’s seat. It is the American people themselves who want the furrow plowed. It is the American people themselves who expect the third horse to pull in unison with the other two.
“The Courts,” Roosevelt boomed, “have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.”
Roosevelt’s critics were aghast at his plans. They claimed he was trying to “pack the Court” with justices that would simply be his yes men. Reacting to his critics, Roosevelt cut to the heart of the matter:
“[I]f by that phrase the charge is made … that I will appoint Justices who will not undertake to override the judgment of the Congress on legislative policy, that I will appoint Justices who will act as Justices and not as legislators—if the appointment of such Justices can be called ‘packing the Courts,’ then I say that I and with me the vast majority of the American people favor doing just that thing—now.”
But Congress never voted on the plan, because the need for it vanished virtually overnight. (It’s unclear whether it would have succeeded, or if a more moderate plan that would have given him only two or three justices might have succeeded. Historians still debate the issue.)
The need for Roosevelt’s court packing plan ended with a decision on the minimum wage, a crucial component of the New Deal.
On March 29, 1937, a Washington state minimum wage law came before the Court in West Coast Hotel Co. v. Parrish. The law in question was nearly identical to a New York state law that that had come before the Court a year earlier. But this time, Justice Owen Roberts abandoned the Four Horsemen to uphold Washington state’s minimum wage law in a 5-4 decision.
In a series of 5-4 decisions two weeks later, the court upheld the National Labor Relations Act as constitutional. The ruling was astonishing, and Owen Roberts was the justice who’d swung the Court to the left.
Labor Secretary Frances Perkins was close friends with Justice Roberts’s wife, Elizabeth. When the decisions came down, according to Perkins’s biographer Kirstin Downey, “she rushed that afternoon to Roberts’ home” and “threw her arms around the man and hugged him.”
“Owen, I’m so proud of you,” Perkins told the Supreme Court justice. “A man of your standing and intelligence who is not afraid to change his mind!”
Downey writes of how Roberts was embarrassed by the affection, but also very pleased. “Really, do you think so?” he replied to Perkins.
Less than two months later, the Court declared that Social Security was constitutional.
Thus was the New Deal saved from execution on the Supreme Court’s bench. Social Security was salvaged and the National Labor Relations Act gave labor and unions a lifeline after years of fighting to merely exist without its leaders and members being murdered.
Shortly after the Supreme Court upheld Social Security, Willis Van Devanter, one of the Four Horsemen, retired from his position after 26 years on the bench. This gave Roosevelt his first Supreme Court pick: Hugo Black. Less than a year later, Roosevelt got his second pick when Justice George Sutherland announced that he was retiring.
By the end of his 12-year presidency, Roosevelt ended up appointing nine members to fill eight of the nine seats on the Supreme Court (one, Byrnes, only served a year and a half and was then replaced by FDR).
Roberts’s about-face in West Coast Hotel was referred to at the time as “the switch in time that saved nine.” And it’s possible — although not yet definitively probable — that we’re seeing a similar dynamic at play today.
Another factor that may have influenced justices Roberts and Kavanaugh is Congress asserting its power under the Constitution, denying the justices the power or ability to rule against laws passed by Congress.
Article III, Section 2 is unambiguous, asserting that Congress is the first among equals, as I laid out at length on December 29th in an article titled Gorsuch Knows “Three Co-Equal Branches” Is a Myth. That clause of the Constitution says:
“[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
And Congress, in the legislation to lift the debt ceiling that was signed into law by Joe Biden just last week, reached back to that section of the Constitution, asserting their power to do something called “court-stripping”:
“SEC. 267. JUDICIAL REVIEW. No determination, finding, action, or omission under this title shall be subject to judicial review.”
Judicial review, of course, is the practice the Supreme Court itself legalized in 1803 in the Marbury v Madison case where it strikes down or even re-writes laws passed by Congress and signed by the president.
Justice Roberts himself — back when he was a lawyer working for Ronald Reagan trying to find ways to overturn Roe v Wade and Brown v Board — wrote extensively about how the Reagan administration and Republicans in Congress could pass legislation overturning both decisions and then simply insert court-stripping language like that above to prevent it from being overturned.
(This is treated extensively in my book on the Supreme Court.)
This could be a huge deal, because if Congress wanted to, for example, overturn Citizens United all they would have to do is write legislation that does so and include that court-stripping sentence. The Supreme Court would be powerless to stop them, at least in theory.
It’s unlikely this court-stripping provision went unnoticed by the justices. Did that have as much impact on Roberts and Kavanaugh as public opinion may have?
The final consideration is noting how conservative justices historically have become more liberal as they’ve grown comfortable with their lifetime tenure and decided to do the right thing for the country, rather than stay in the ideological lane that got them the nomination in the first place.
As Oliver Roeder wrote for a piece titled Supreme Court Justices Get More Liberal As They Get Older:
“A typical justice nominated by a Republican president starts out at age 50 as an Antonin Scalia and retires at age 80 as an Anthony Kennedy.”
Republican appointees Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, and David Souter were all considered solid conservatives when appointed to the bench, but all joined the Court’s liberal faction for many or even a majority of their lifetime decisions.
This was no doubt what motivated Leonard Leo and the GOP to begin a rigorous process of vetting potential judges, taking them under the wing of the Federalist Society and other groups at a young age, nurturing them with ongoing “educational seminars” and other (often financially) supportive programs — sometimes at luxury resorts or the mansions of billionaires — to keep them from leaving the conservative fold.
The Koch brothers regularly wined and dined Antonin Scalia and Clarence Thomas, among others, at their billionaire retreats, and the gifts Harlan Crow has spent the past 29 years showering on Thomas and his family may well have been for the same purpose. Golden handcuffs: a way of keeping them from straying.
But since ProPublica and other news outlets have recently outed these influence efforts, it’s possible the justices — or at least a few of the justices — are moving back into the traditional realm of their predecessors and asserting a new independence to do the “right thing” rather than “the thing the right wants.”
Time will tell, of course. But given how unlikely it is that Congress will impeach Thomas or that the DOJ will investigate his wife or Roberts’ wife’s income (among other outrages by the other Republican justices), public opinion and constant pressure from Congress and the White House may well be the best and perhaps only corrective for an out-of-control Court.
