As Elliott Abrams, Deputy National Security Advisor under Republican George W Bush and Assistant Secretary of State under Republican Ronald Reagan, observed, in analyzing the furor over court reform in Israel–and distinguishing it from our own–at the core of the Israelite controversy is the far-reaching power that a bare legislative majority, itself cobbled out of a coalition that may cover even less, can enjoy in the Israeli system, whereas in our country, he points out:

Indeed, ironically, in our country, aka the leader of the free world, our problem is not the so-called “tyranny of the majority,” which, even more ironically, an overwhelming majority of Israelis fear: it is, instead, the lack of protections we have against tyrannies of the minority (or just plain tyranny as it’s known in the rest of the world), with the Court as Exhibit A.  Frankly, if we are looking for takeaways from Israel to apply here in America, the most critical lie in the increasingly successful tactics of the protesters there, should we be unable to achieve the reforms we describe below.

A Distinction Without A (Real) Difference (In The End)

By far the Court’s greatest champion among the founders was Hamilton, the Federalists’ Federalist.  In the jesters’ touchstone, Federalist 78, for example, he wrote:

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority… Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”

But it should be remembered that where the development of the Constitution was concerned, Hamilton’s role, unlike Madison’s, was painfully small: at the Constitutional convention, he was given the floor to present his plan for a strong central government, which he did, at such length (at least six hours) some credit him as the real creator–or at least the initial inspiration for–the filibuster.¹⁵   And his vision was completely rejected.

Don’t hate, Hamilton fans–we’re not saying he wasn’t important, even extremely so, even where the Constitution was concerned, but his contribution was primarily that of salesman, using whatever arguments in its favor most resonated for him and would therefore, he believed, resonate likewise with those whom he hoped and was charged to persuade (e.g. the 25-40% of Americans who were Tories and supported the British in the Revolutionary War, for example¹⁶).

And well, to be only a little loose with our analogies, would you consult the Geico Gecko about the ins and outs of your car insurance policy? Get hygiene tips from the Charmin bears? So why would you take Hamilton’s word over Madison’s or, for that matter, that of his close ally, the heartbeat of America (for better and worse), Thomas Jefferson (OK, now you can hate; we don’t care)?

Beyond this, there are more than a few passages from Federalist 78 and elsewhere in AHam’s oeuvre the jesters don’t care as much to share.  For example, in Federalist 81, he writes:

There is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution

In several places in Federalist 78, he makes clear the legitimacy of the Courts is greatly dependent on their restraint.  The courts should only intervene in cases where there’s an “irreconcilable variance” between a statute and the Constitution; they should exercise “judicial discretion,” not impose judicial fiat, and when laws are in conflict with each other, “so far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done.”  More pointedly, he states:

“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”

And in fact, over the course of our first century, such rules were developed by the Court, a series of maxims aptly and collectively known as the “Constitutional Avoidance Doctrine”, uniformly intended to ensure objectivity and restraint, to avoid encroachment on democratic processes.  As summarized by Justice Louis Brandeis in his 1936 concurring opinion in Ashwander v. Tennessee Valley Authority, they include(d):

1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions ‘is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.’

2. The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’... ‘It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’ 

3. The Court will not ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’

4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter…

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

7. ‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’ 

These rules reflect the collective wisdom developed by the Court over the course of more than one hundred and thirty years of experience, post-Marbury.  With the possible (ed. note: and now former) exception of #5, do any of these sound like rules the current Court adheres to today? Rather than a single “doctrine of constitutional avoidance,” the current Court has multiple doctrines, each designed to give it more grounds to intervene, not fewer, with multiple justices, in clear violation of rule #2, publicly soliciting cases that will allow them to implement and enforce their views.  Here are just three examples of new “doctrines” the far-right Court majority is itching to jam, like a wrench, into laws of the land:

• The “Major Questions Doctrine” — already being applied, in a physical and economic environment of increasingly rapid change, no less, to throw out administrative rules created by government agencies to respond to facts on the ground, unless such rules were already included in the original legislation that gave the agency jurisdiction.  Yes, that’s right, this Court has a real problem with unelected bureaucrats seizing power that’s supposed to belong to Congress.  Really. (Seriously, fellas do you ever listen to yourselves talk?) At least unless they themselves are the bureaucrats in question. At its most extreme, this doctrine would empower the Court to bring to a halt the activities of every and any government agency at every level at any time.
• The “Non-Delegation Doctrine” — a close relative to “Major Questions,” this doctrine challenges the ability of Congress to delegate any independent authority to any agency at all; at its most extreme, it would require Congress to do the work of the entire federal bureaucracy, or do nothing at all.
• The “Independent State Legislature Doctrine” — ginned up to leverage heavily gerrymandered extreme right-wing state legislatures, this doctrine would give these highly partisan bodies absolute control over federal and state elections, with no oversight permitted by state governors, secretaries of state, state supreme courts, or any other entity.  As we’ve shown in Part III of this series, acceptance of this doctrine requires what should be a disqualifying incompetence in reading and interpreting plain English as expressed in the Constitution (ed. note: since publication, it may appear this particular danger has receded, but as the 18th century French revolutionary Marat would say: watch out–in this case, for the head fake, the sleeper the Supremes have planted in their Moore v Harper opinion that’ll potentially allow them to seize even more power for themselves).

And these are only what we can see and hear of what Jefferson called (in the same letter we quoted) “the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric,” thanks, in part, to another invention with no Constitutional backing or validity, the so-called “shadow docket,” which allows the Court to turbocharge the number of cases it can decide without having to go through all the pesky rigamarole of public hearings or the publication of opinions allowing we, the people, in whose name they claim to act, to adjudicate, ourselves, the validity of their reasoning.

Only they know how many more ersatz “doctrines” they are deploying in place of the true originalist approach, wholly focused on restraint and respect for democracy, that seemed to work just fine for our first two-plus centuries–except in big cases like Dred Scott, Lochner, et al, where the unelected got too far out over their skis and too close to the sun, high above we, the people, whom the founders expected, via their elected representatives, to be making the big decisions.

At the end of the day, as the current Court illustrates better than any before it, the ultimate problem with relying on Hamilton as Constitutional authority where the judiciary is concerned is (much) less that his support was contingent on some level of latent authoritarianism they share that he supposedly embodied than it is on what’s turned out to be either a naive faith on his part, or a huge, cannily-expressed caveat–two of them, actually–in his sales pitch.   The most famous passage in Federalist 78, after all, is not anything Hamilton said in favor of the power of the judiciary, but the lack of powers he promised the people it would have, to whit:

“…The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.  It may truly be said to have neither FORCE nor WILL, but merely judgment… the judiciary is beyond comparison the weakest of the three departments of power… it can never attack with success either of the other two;”

Less remarked on or quoted by either “side” is the one circumstance described in 78 even he recognized could shatter his confidence in a democracy-defending judiciary:

“Though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments…”

Which, of course, is exactly what’s happened.

At which point, it’s fair to say, Hamilton fully aligns with Madison and Jefferson. Nothing he has said, our man in New York points out, should be taken “by any means” to “suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both.”

Mutualism

It’s roughly at this point where I would expect our conservative friends to smirkingly point out that the rest of us had no problem with judicial activism when it “was in our favor,” but only now have a problem “when the shoe is on the other foot.” Actually (leaving aside that their observation is a red whale and non-sequitur), where the judiciary is concerned, the shoe is supposed to remain on the same foot all the time: on behalf of the powerless against the powerful.

In the pre-industrial time of the Founders, the powerful were assumed to be the majority, because we were a democracy, after all,¹⁷ a system of government in which, other things being equal, the majority opinion would always prevail (even Hamilton was on board with this). Judges were given lifetime appointments specifically to insulate them from the political pressure of the majority so they could protect the rights of individuals and minority groups against populist encroachments.

But with the Industrial Revolution, which the Founders could not have predicted, the concept and reality of what constitutes a political majority changed, irrevocably so far. In an Anatole France satire, Jeff Bezos and Rupert Murdoch might constitute a minority group in need of Court protection, but in reality, once the Gilded Age of the late 1800s was in full flower, the will of the majority began to be measured in dollars, not people or votes–yet another corruption of our original democratic ideals–and has only become more so ever since, so much so that the most radical, leftist party in the history of our country to that point, and by far the most powerful at the time–the GOP–was swiftly captured by and became the party of the oligarchy, which it has largely remained ever since.

Once this transformation occurred, indigents like Clarence Gideon and Ernesto Miranda, while surely far more numerous than the Rockefellers, Carnegies, Mellons, and Vanderbilts, became the true minorities the Court was designed to protect.¹⁸  Yet in the entire history of our nation, only one Court, the Warren Court of 1953-69, fully understood its obligations in this way. With the exception of a few other instances scattered here and there (e.g. Obergefell v. Hodges), the Court has had its shoe on one foot, to be sure–the other foot; a right wingtip in favor of the powerful on the throat of the powerless. For pert’near all its history, its mien has ranged from regressive to reactionary.  In the current era, even so-called liberals like John Paul Stevens, David Souter, Stephen Breyer, Elena Kagan, and the sainted RBG (have) regularly voted in favor of big business against labor, environmentalists, and consumers.

Normally when conservatives make a bad faith argument in an effort to portray the rest of us as hypocrites, we call it “whataboutism” or “false equivalence,” which are, frankly, classically effete rejoinders compared to the conservative neologistic arsenal, and wholly inadequate when they are calling out 16 years out of 233 years of jurisprudence as a way to say “now we’re even,” even as they’ve stacked the Court and all pathways to it to guarantee their continued dominance for decades more.  We need a new word in the Glossarium to describe particularly obscene whataboutisms and asymptotically false equivalences like this. For now we’re calling them “whatacrockisms,” but are hoping you can do better.

In the meantime, just to wash the slightest stain and stink of hypocrisy from off ourselves¹⁹ and onto where it belongs, we suggest making the following offer to every right-wing whataboutist:

In general (and in closing), we’ve limited our concept of originalism to the relatively superficial, i.e., the thoughts and writings of a select group of European white men who came together on 0.4% of the earth’s land mass two-plus centuries ago for thirty or forty years out of Homo sapiens’ 300,000+ year existence.  An extraordinary group of men, to be sure, but a mere speck in every dimension in comparison to the scope of life on earth, as we become increasingly keenly aware of by the day (not to mention representing only the opinions of about the same proportion of Americans who still approved of Richard Nixon’s performance on the day he resigned²⁰), and in reaching for bloodless solutions to the threat to democracy our judiciary has become, we find ourselves searching outside ourselves, seeking inspiration on this much broader canvas, in what Jefferson would have called natural law, above and beyond the laws of men, from whence cometh his–and our–“inalienable rights.”

When we do, we see the Court in a light both starker and ultimately more compassionate, exemplified and personalized by the remarkable feline parasite, Toxoplasma gondii, which is believed to have infected half of the humans on earth, the vast majority completely unaware of its existence, even as we’re learning of the extraordinary extent to which, like cats themselves, other “domesticated” animals, and plants, not to mention a cornucopia of other microorganisms–it has come to shape our existence for its own purposes.  Most recently, for example, we’ve learned Toxo–which is often sexually transmitted–is capable of causing women to exhibit lower levels of facial asymmetry and body mass, higher levels of self-perceived attractiveness, a higher number of sexual partners, and may cause both infected men and women alike to be rated as more attractive.

Like such a parasite, the Court as it exists today was born within (but not deliberately or intentionally created by) its host, our democracy. It originated, in Article III of the Constitution, taking the relatively formless shape of an egg or embryo, by far the least fleshed out of the branches in both form and function, and began in a relatively quiescent egg-like state of dormancy, from which it hatched, in 1803, thanks to Marbury.  It remained a relatively harmless juvenile for the next 50+ years, then, as an adolescent, made its first disastrous lurch towards adulthood in Dred Scott.

From there, while the rest of our branches of government have, to the dismay of many, either remained the same (or, in the case of the Senate and Electoral College, grown into the parodies their logic dictates), the Court, like parasites will do, has taken on an independent life of its own, until it has reached a point where today, like Toxo, it guides and shapes and steers much of the activity of its host.

As impressive as the Democratic performance in the the recent midterms was, for example, a fairly airtight case can be made that the Court, starting with Bush v Gore, continuing with Crawford, Citizens United, Shelby, Brnovich, Rucho, et al, has, like parasitic gut bacteria we now know cause us to crave junk food (to help them outcompete more beneficial symbiotic flora), successfully herded the electorate into a result far more beneficial to its prime benefactors within the body politic, the post-modern Republican Party, than would otherwise have transpired, and even tricked us into feeling good on Election Night when we really shouldn’t, much as we often do just after polishing off a burger and fries.

The key difference between Toxo and pathogenic intestinal organisms like Pseudomonas and Klebsiella, on the one hand, and the Court on the other, is that like all successful parasites, the former organisms have co-evolved with us long enough to figure out how to get their needs met without killing their hosts, and therefore themselves. The Court is a much younger, much less mature parasitic entity, and it is very much in danger of killing off both its host, democracy, and, as it will learn if authoritarianism emerges to fill the resulting void–itself–at least to the extent that its existence as an independent organism and the importance of same to its identity are concerned.

On a more positive note, our human bodies today are filled with non-human organisms integral to our functioning (non-human microorganisms outnumber human cells in our bodies by more than 10 to 1) that in all likelihood began their relationship with us in ways not dissimilar to the Court’s with democracy–in fact, many of the fundamental organelles (e.g. mitochondria, ribosomes) found in every one of our cells were originally independent organisms. The process of coevolution to the completely mutualistic relationship that exists today was far from painless, and likely cost the lives of millions of mammals and pre-mammalian vertebrates, and billions and billions of microorganisms. We only have one Court and one democracy with which to create a healthy mutualistic relationship. If we agree there’s value to having the Court at all, it’s almost certain that we will have to save it from itself.

One of the first pieces we wrote for Creative Politics, written in anticipation that the Democrats might someday control the presidency and both houses of Congress, was dedicated to identifying ways to reform the judiciary that were inarguably non-, even anti-partisan in nature, so as to forestall the inevitable, and increasingly dangerous, escalation that seemed inevitable if they were anything but.  If you’ve read this far, even you know we’ve rumbled and rambled far too long at this point to justify recapitulating these recommendations and rationale in detail, but it’s worth noting, we think, the extent to which they align with the tack we’ve taken with respect to this topic in general: they are all more originalist than the system we have today.  Here’s how:

• Increasing or decreasing the number of justices on the Court to an even number.  The original number was six, another testament to how little the Founders thought of the judicial branch and how little power they thought it should have–they clearly had no concern over the possibility the Court could deadlock and be unable to make a decision.  Neither do we.  In fact, in light of how inherently political the Court has become, we’d require that half the justices always be chosen by whatever party or parties represent the liberal side of the spectrum at the time, and half by the conservatives. In this way, the Court could only strike down federal or state law on Constitutional grounds if a bipartisan majority that includes at least one justice on each side agrees that the Constitution has been violated by the measure in question.²¹
• Having all federal justices at all levels confirmed by both the Senate AND the House.  More than 90% of the cases handled by the federal judiciary never reach the Supremes, and it’s clear from both content and relative level of detail in our founding document that the founders intended the House to be the most powerful branch of government, with the Senate acting only as a check on its exuberance and otherwise limited to handling routine duties like confirming ambassadors, judges, and the like.  In fact, it’s yet another sign of how minimal the founders considered the judiciary’s role to be that they didn’t bother to involve the House in judicial appointments.  Had they had any idea the judiciary would seize the powers it has, they certainly would have insisted that the House have at least a co-equal voice in determining who would hold these positions. The Senate has already added provisions to the process, such as the filibuster and the “blue slip,” that are not only not mentioned anywhere in the Constitution, but which the Founders would have vehemently opposed.  Let them add a slip of a different color–House approval–that our forefathers would applaud instead.
• Adding “citizen justices” to the mix.  The current pathway to the Court is an astonishingly narrow one for a democracy: go to law school (preferably Harvard or Yale–eight of the current nine are graduates; two went to the same elite private high school as well), clerk for a justice, become a judge, become a justice.  It was not always thus–in fact, that’s the path taken by almost none of the greatest justices in our history (and none of the original six), nearly all of whom either held elective office at some point in their careers and/or worked as political appointees in elected governments.  One only needs to look at the opinion of a justice like Neil Gorsuch in TransAm Trucking v. Maddin to appreciate the corrosive cost of having a group of unelected decision-makers whose life experience is so unrepresentative of, and out of touch, with the rest of us have such powers over all laws at every level.

There are, of course, other reforms worth consideration, such as term limits, which we briefly discussed in that early piece.  Given the rapid pace of change in the world today, we don’t believe, as some do, that it can be the only reform–we can’t afford to potentially wait for as many as 18 years (the most common limit bandied about) for a majority to shift its opinion on the myriad unprecedented actions climate change is likely to compel us to take, for example.

But for what it’s worth, such limits would fit snugly in a package of real originalist court reforms, and likely do so more aggressively than what’s currently being considered.  The first six justices who made up the first Court served an average of 8.1 years each–not twenty-five and counting as is the case today.  If you throw in every justice confirmed in the Founder Era (generally considered to have ended on July 4, 1826, when long-time frenemies John Adams and Thomas Jefferson died within hours of each other), that average tenure only bumps up to 13.4 earthly revolutions.  Include every justice added to the Court in our first century as a nation, and it still only rises to 16.2 years/judge.  Clearly “lifetime tenure” meant something different to those who wrote those words than we take it to mean today.

Finally, in the spirit of the democracy fundamentalists we’ve become since we wrote that piece in 2019 (thanks in large part to the 2020 election), we’d add two additional pillars to the three we outlined way back then:

• Directed verdicts.  As we’ve suggested, most of what the Court currently considers its domain is the stuff “elections are for,” but of course, that can only be the case if elections are free and fair, an area where, ironically/not ironically this Court’s decisions have been spotty at best.  As we’ve also observed, after the Civil War, the time our own most closely resembles, Congress had to aggressively leverage its Constitutional right to regulate the Court’s jurisdiction to prevent the justices from gutting the voting rights of newly enfranchised Black Americans; it’s become apparent little has changed except authoritarian suppression is not just for Black folks anymore. Our elected officials need to make clear to the Supremes that their primary responsibility is to protect voting rights and maximize access to the polls for all American citizens, and that any decision they make that’s clearly contrary to this prime directive will be ignored–or worse.  After decades of decisions made on the basis of shoddy logic and research, this Court owes it to the preservation of the institution they serve to cease supporting flat earther-level theories of voter fraud to uphold clearly unconstitutional practices.  Frankly, as a former educator, I would have them write out the 14th amendment a few thousand times each as well.
• An enforced return to restraint.  The other legitimate role of the Court as it pertains to the other two branches is the protection of minority rights from “majority tyranny,” but as Elliot Abrams and many others have observed, our system of government includes many–frustratingly many–checks on majority rule and authority.  As a result, much of what the Court does today is anti-democratic abuse of this responsibility, much of it stemming from the warped, willfully naive definition of “majority” it employs. I personally favor Citizens United, for example, provided strict Net neutrality is also the law of the land, and I do so because it’s a perfect example of a case where Court intervention was required to prevent politicians from putting policies in place to keep themselves in power, elections notwithstanding,²² but the Supremes’ decision to use the occasion to promulgate a sweeping “corporations are people, too” standard, positing that our biggest and most successful companies are in need of the same level of protection from “majority tyranny” as the likes of Miranda and Gideon, in a country where, for decades, not a single piece of legislation has become law without the support of the wealthy, is an equally perfect example of the kind of highly questionable reasoning that’s left the Court on the brink of potentially fatal blowback even Hamilton would applaud.   Hopefully a properly chastened Court can figure out for itself a realistic 21st century definition of “majority” appropriate to its charge, one based on power, not population, but if not, just as in New Deal days, our elected officials may have to figure it out for them, which, I think we all know, would be “sub-optimal.”

Is this a wish list drawn from scifi fantasyland?  That’s up to you.  The Roberts Court currently seems as unchastened and unchastenable as any in our history–which is a clear, nearly statistical signal that it’s ripe for a fall.  Meanwhile, both parties in Congress have grown far too accustomed to using the Court for their own craven purposes, either to do their bidding or as target practice to rile up their base.  In both cases, the Supremes play the same role; obviating the need for our elected officials to make hard choices, which, in our current polarized state, could, for those in the limited number of competitive seats that determine the balance of power, turn a glide path to perpetual re-election into a coin flip at best.  Which is why no one should be surprised that Biden’s court reform commission went absolutely nowhere, and why bringing the Justices To Jesus will be up to we, the people.

So what will it take for the Court to reform itself, if that’s how it must be?  We think it’s pretty simple.  Whatever the level of bravado of the current justices individually, collectively their illiquid courage is also yet another ‘tell’ that what keeps them up at night is the only Federalist Paper we can be fairly sure they’ve all read, if not committed to memory, Hamilton’s #78, especially those few sentences where their most ardent defender gives up the game and sells them down the Potomac for votes to close the sale.  They all know they have neither “the power of the purse” nor “the power of the sword” to enforce their opinions, and that as long as Congress remains closely divided–the very condition that has turbocharged their rise–and the presidency remains in Democratic hands (or at least not in Donald Trump or Ron DeSantis’s), they will continue to have neither power to enforce their will, only their good name and reputation, a rep which, as it’s fairly clear they’ve noticed, they can only hope is in one of those toilets that takes ten or more times to flush, and not because someone’s been trying to use it to dispose of meeting notes.

In short, only the ongoing inertia of we, the people, protects them now, as we scramble to make ends that can never meet without full restoration of the democratic system of government our founders envisioned for us.  That’s what we’d propose to change, via state-sponsored civil disobedience, in response to yet another egregious overreach, disobedience that escalates retroactively, all the way back to Bush v Gore, if necessary, until the Court buckles the way its nearly as reactionary predecessor did in 1937.

Then, as now, we were faced with existential threats to our system of government and way of life, threats the Court seemed, then as now, to be astonishingly oblivious to, looking only backwards into the past as they blocked every possible path to transformation, transcendence, and renewal.  Every time the subject of court reform is broached, this episode in our history is inevitably brought up.  As for the truth of it, not so much.  Instead, the corporate media invariably attaches to it the past tense of Donald Trump’s favorite epithet for institutions and initiatives he finds threatening–you probably know it as “Roosevelt’s failed court-packing scheme,” which, like all good propaganda, is not technically a lie: FDR did, indeed, abandon the “scheme.”  What’s usually omitted in the telling is why. Some of the right-wing justices retired and were replaced by others more to his liking, while others moderated their knee-jerk antipathy to the New Deal, and the net effect was more or less what FDR wanted: the Court stopped reflexively striking down New Deal programs, and then stopped striking them down at all.  By compelling the Court to look down instead of up (with nose held high), Roosevelt made the justices see just how close to the edge of the abyss they had brought their institution.  We must make this Court come to the same realization, to put the fear of Democracy into them.

It has to be us, because in 1937 FDR was us, overwhelmingly popular and therefore powerful enough to take on the Court himself.  In today’s America, that could only happen under circumstances we should all devoutly hope we never find ourselves in.²³ We should even assume “state sponsorship” is little more than a euphemism for passive “state non-interference,” at least at first. On the other hand, because, as it turns out, MAGA Republicans never do get tired of #winning, we could be about to see the perfect state step forward to kick off the campaign, and Republicans could find themselves singing the blues–or, to their surprise, the final verse of one old Tom Lehrer song in particular.

On June 8th, in a rare moment of fair and balanced comity, the Court ruled in favor of voting rights and against racist gerrymandering, but the state it asked to ‘take one for the team,’ redder than red Alabama, doesn’t seem to be having it–it has since submitted a “new” Congressional district map that transparently does nothing to address the Court’s concerns, and is in clear, complete defiance of what a rare coalition of liberal and conservative justices ordered AL to do. If, as expected, one or more of the conservatives on the Court, visibly uncomfortable with what they felt they had to take for the team, decide to cut and run, hiding behind the fig leaf of the shadow docket, for example (as they thank Birmingham for doing what it was told, or, more likely, saying nothing at all), the gauntlet truly will have been thrown down. If a token red state doesn’t have to comply the one time the Supremes gently place it on the losing side of a case, why should blue states, whom the Supremes beat down all the time, continue to do anything the Court has demanded they do?

We’ll return to the larger question that underlies this one in the final piece in this series, Casus Bene. But not before we explore, for your consideration, the many, increasingly radically democratic implications of a true commitment to real originalism, with a brief but satisfyingly scientific detour proving why democracy fundamentalism is worth bearing any burden and pays for itself (unlike certain tax cuts we could mention), no exceptions, and no excepts required.  Let us know if you’d like to be informed when any of these pieces are published.

PS Since publication of this piece, Alabama has blinked, but other states have not.  One thing you can count on from post-modern Republicans, like Trump himself, they will always push the envelope; it’s likely only a matter of time before another Voting Rights Act case compels the Court. in its blatant egregiousness, to decide whether to swallow or spit, and nobody knows anymore what will come after that.

Creative Politics is the world’s first community-based political incubator, always under construction,  as we synthesize the best of liberal and conservative ideals with technology and history to generate policies, strategies, applications, and actions for the post-modern era that are well outside the beltway, and well beyond just talk.  All Creative Politics blog posts are collaborative, living documents, the way Madison and Hamilton would create them if they were writing The Federalist today.  Let us prove it (with credit) by leaving us a comment below.

¹ Court jesters claim that it’s routine, or was, for the Court to periodically re-assert and re-justify/explain its powers so as to re-educate the public. Hmmm-ina hummina hummina. We don’t have time to go through the volume of Supreme Court cases to check this, which we suspect those making such assertions are counting on as our reality. But if anyone in the community had the time and energy to do such a systematic study, we’d love to find ways to make it worth your while, to the extent a bootstrapped startup like us can do so–let us know in comments below. Back

² The executive branch was just supposed to execute the will of Congress; hence the name–lol Back

³ Others who generally agree judicial review was at least “strongly implied” by the founders nonetheless count only 12 votes out of 55 in favor, resulting in George W Bush would call “fuzzy math again.” And in any case, as we would have expected, “their interpretations of this power varied. Back

⁴ To put it in sports terms, the official approval rating for the Court is what one might expect to see among fans of a sport in which there are only two teams, in which the referees consistently make all calls in favor of the team with the smaller fan base. For a true apples to apples comparison, one should subtract from the official rating the additional Americans who would disapprove if the Court were a more equal opportunity offender, e.g. peeling off at least the proportion who rated the liberal Warren Court’s performance as “poor,” if not those who considered it “fair” as well. To do otherwise is to fall for what we call a stupid media polling trick, about which we’ll have more to say in Part VI Back

⁵ If so, you’re not the only one. In general, Adams, unlike Washington, was recognized as completely partisan from start to finish in his term, and in an essay published by the National Constitution Center, Jack Rakove, Coe Professor of History, American Studies, Political Science, and Law at Stanford, observes: “The Judiciary Act of 1801 was a calculated Federalist response to the party’s loss of control over all three political institutions of the national government. If one had reliable ways to know or test the political commitments of judicial appointees, Article III, if exploited quickly, would enable the Federalists to ensure their control of one branch of government for years to come. The real logic of Article III thus promoted the opposite of judicial independence. One could argue, not all that perversely, that the judicial ambitions of the Federalist Party in 1801 anticipated the judicial ambitions of the Federalist Society almost 200 years later. (emphasis mine) Back

⁶ Alito, Kavanaugh, and Barrett all clearly dissembled in their confirmation hearings when asked for their views on precedent, stare decisis, and the status of Roe v. Wade as the law of the land; in addition, Kavanaugh and Thomas both lied in their hearings (and, in Kavanaugh’s case, associated materials) about sordid (and worse) behavior on their part in their past (in Kavanaugh’s case this extended back to his confirmation as a federal judge as well), all of which would have been revealed had the investigations of both Thomas and Kavanaugh not been cut off at the knees, with multiple witnesses who courageously stepped forward in each case never called to testify. Back

^6.5 Roe is hardly the only one they’ve either violated and/or made clear they intend to, including many much older and even better established) Back

⁷ The justice in question might argue that this clause only allows Congress to regulate its jurisdiction, not its conduct, but this would be a position so naive with respect to the realpolitik of power–all of the Court’s power derived from its jurisdiction; therefore any body that regulates that de facto regulates everything else the Court does–and insulting to the intelligence of we, the people, that mercy would compel us to wrest the shovel he is deploying from his grip. Back

⁸ Not that we should ever mistake Ivy League graduation for intelligence or, more crucially, intelligence for judgement,given the growing body of research showing that in many cases, more intelligent individuals are, if anything, more durably susceptible to disinformation that confirms their pre-existing points of view than their less mentally gifted peers, the gift, in this case, including a more potent available skill set to talk themselves into believing anything. Back

⁹ And note that our source for this factoid is the conservative Bill Of Rights Institute–the significance of this will be apparent shortly. Back

¹⁰ There are 525,600 minutes in a year, and roughly fifty-four years elapsed between Marbury (1803) and Dred Scott (1857). By contrast, Nixon secretary Rose Mary Woods only had an eighteen and a half minute gap she was unable to account for. Back

¹¹ The Court also observed that while international treaties superseded state laws, they did not supercede the Constitution; however, the case did not actually test this, and in fact, the Court made clear it would be very circumspect about challenging legislative treaty-making on Constitutional grounds, writing, “If the Court possess a power to declare treaties void, I shall never exercise it but in a very clear case indeed. One further remark will show how very circumspect the Court ought to be before it would decide against the right of Congress to make the stipulation objected to. If Congress had no power (under the confederation) to make the fourth article of the treaty, and for want of power that article is void, would it not be in the option of the Crown of Great Britain to say whether the other articles in the same treaty shall be obligatory on the British nation?” (emphasis mine) Back

¹²As we argued in Part II of this series, it’s a crime against democracy that the political system and our industry (new media) have collectively done such a poor job leveraging the educational tools technology provides to this end for the benefit of all, politicians included. We’re actively working on projects in this area, about which we’ll have more to say publicly soon! Back

¹³ The closest thing to an exception on this list is France. Until 2008, it definitely did not allow anybody to interfere with the workings of the legislative branch–in fact, it was quite emphatic about this (no wonder Jefferson was such a Francophile, and a favorite of theirs as well) And even now, while the countries highest court can declare some aspect of a law unconstitutional, it can’t actually strike it down. A Constitutional Council has to agree, and even if this happens, the legislature is always given the opportunity to amend the bill to avoid the invalidation of all or part of it Back

¹⁴ And, we should be clear, as The Atlantic’s Yair Rosenberg observes, both Israel’s hardline government and the opposition believe the country’s Supreme Court is too powerful and unaccountable, which is why Netanyahu was taken by surprise and aback by the pushback on what he thought was a “consensus issue.”  Where the two sides disagree, fairly vehemently, is what to do about it, with the opposition essentially reacting against a scenario where, as in Poland, Hungary, and, increasingly, our country (particularly in places like Wisconsin, prior to the recent State Supreme Court election), where the judiciary becomes an irreversible rubber stamp that reinforces and helps guarantee ongoing one party rule. Back

¹⁵ OK, you got us–that’s just truthful hyperbole. Back

¹⁶ A group whose descendents still seem to be with us, all still dressed in red, even. Back

¹⁷ A democracy of propertied white men, to be sure, but nevertheless at a time when the closest thing east or west of Switzerland, Mother England’s parliamentary system, granted the franchise to less than two percent of the population, and still granted far greater powers to a monarch than the founders ever intended to give the Court. Back

¹⁸ And, frankly, it’s tough for supporters of an alleged “tough on crime” party that continues to support trying children as adults and executing the intellectually disabled, yet nevertheless insists the likes of Donald Trump be let off the hook for January 6th (a classic case of TDS), to argue otherwise. Back

¹⁹ Hypocrisy, in our opinion, is more akin to pregnancy than it is to lying. One can easily distinguish greater and less magnitudes of lying, either by the magnitude of the lie itself or the volume of lies involved (“if you can’t tell the difference between one lie and a thousand, then a thousand lies is what you’ll get”), but hypocrisy is a more fundamental state–you either are one, or you aren’t; you either say one thing and do another, or you don’t–you can’t be a “little bit of a hypocrite.” Back

²⁰ As Harvard historian Jill LePore points out, in the “originalist” era of the Founders, only adult, white, property-owning males had any meaningful say in, or influence on, the founding documents that the Court claims it uses to “call balls and strikes.” According to the Census Bureau, adult whites comprise 64.1% of the US population. The Bureau also says 49.5% of our population is male. If we assume this ratio is the same across races,^18a this means 31.7% (0.641 x 0.317) of Americans are adult white males. According to the National Association of Realtors, 72.7% of white/white households own their own homes, which suggests only about 23% (0.317 x 0.727) of Americans today are adult, white, property-owning males. On the day Richard Nixon, facing certain impeachment and conviction, to be followed by prosecution for a myriad of crimes, resigned the presidency, his approval rating was 24%. Back

^20aAnd certainly, given the overall predominance of whites in our population, it stands to reason that the overall ratio is closer to the white ratio than that of any other race.

²¹ Since we wrote that piece, the Democrats did, in fact, succeed in capturing full control of the government, and dutifully created a commission on court reform that actually considered this concept, but rejected it, in Ezra Klein’s words (who supports “our” idea), for reinforcing “the accurate perception that Supreme Court nominees, chosen by political parties, extensively vetted for ideological reliability, might be, on some level, partisan actors.” An objection that’s fairly ironic, given that the partisans on both sides will be the ones who object most strongly to our solution, not only because the dream of running roughshod over the majority of Americans (who by and large don’t share the extreme views of the partisans in either direction) will be over, but because, unlike court-packing schemes and the like, they believe our risk-free scheme also provides no way to undo the damage past decisions by useful judicial idiots have, in their view, done to the fabric of the nation.  In this belief, however, they are mistaken. Back

²² Had the McCain-Feingold campaign finance bill been upheld by the Court, it would have limited the capacity for challengers and political insurgencies to raise and spend money on their campaigns. Of course, much as the laws of France once prohibited both the rich and the poor from sleeping under bridges, it would have limited the capacity of incumbents to do the same–but left all the non-financial advantages incumbents enjoy (such as widespread name recognition & constituent service–on our dime) and a few financial ones, too, such as the right to send all constituents–at government/taxpayer expense–regular updates on their work, goings on in Congress, and other matters.

Of course, having no limits on campaign funding threatens to lock in the advantage of another type of candidate, ie the wealthy and/or corporate-backed variety, which is where our insistence on strict Net neutrality comes in. Much of the heartening broadening in who can run for and win elective office is owed to the much-maligned Internet, which has made it possible to run smart successful campaigns for a fraction of the cost of traditional electoral endeavors (no doubt this reality has contributed mightily to the legacy media’s relentless efforts to trash digital–at both the boardroom and business level, it’s their ox being gored).  For example, one of the reasons Donald Trump managed to remain competitive in presidential races in 2016 and 2020 that he had no business being within an order of magnitude of winning, despite being vastly outspent on television advertising by both Hillary Clinton and Joe Biden, is that his spending on digital media–on a much smaller base–dwarfed theirs. Back

²³ E.g.a military coup, authoritarian insurrection, civil war, a climate catastrophe, a (non-nuclear) World War III Back