Democrats have a better option than court packing
The easiest way to defeat right-wing judicial tyranny is to ignore it
With the unfortunate death of Supreme Court Justice Ruth Bader Ginsberg, Republicans are licking their chops at the prospect of a 6-3 conservative supermajority on the nation's highest legal body. This would be an obvious violation of the "principle" Senate Majority Leader Mitch McConnell announced in 2016 to prevent Democrats from filling Antonin Scalia's seat after he died, but McConnell was lying then just as he's lying now about the supposed distinction.
One potential nominee is Amy Coney Barrett, a hard-line social conservative who has suggested that paper money, West Virginia, the Fourteenth Amendment, and the Social Security Administration are all possibly unconstitutional. While Chief Justice John Roberts has shown some political discretion in his rulings to date, should another right-wing extremist like Barrett be confirmed, he will no longer be the swing vote on the court. It seems quite likely that Roe v. Wade and the Affordable Care Act will be struck down, if not basic building blocks of the American state, and future Democratic presidents will find nearly everything they do overturned automatically under the noble legal principle of "if Democrats do it, it is unconstitutional."
In response, even moderate liberals are proposing a variety of bold options, like adding additional seats to the court as Franklin Roosevelt once tried to do to push the court to stop overturning his New Deal programs. However, there has been comparatively little attention to the simplest and easiest way to get around potentially tyrannical right-wing justices: just ignore them. The president and Congress do not actually have to obey the Supreme Court.
The weird thing about judicial "originalism" is that the explicit principle of judicial review is nowhere to be found in the Constitution. All of that document's stipulations on how the courts are to be constructed are contained in one single sentence in Article III: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Actual judicial review was a product of a cynical power grab from Chief Justice John Marshall, who simply asserted out of nothing in Marbury vs. Madison that the court could overturn legislation — but did it in a way to benefit incoming president Thomas Jefferson politically, so as to neutralize his objection to the principle.
Jefferson famously hated judicial review. In one letter, he said it is "a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so." But because of Marshall's canny political strategy, from that day forward Congress and the president have mostly deferred to the court's views and allowed it to strike down laws or establish entirely new legal principles even on completely spurious grounds.
As Matt Bruenig argues at the People's Policy Project, it would be quite easy in practical terms to get rid of judicial review: "All the president has to do is assert that Supreme Court rulings about constitutionality are merely advisory and non-binding, that Marbury (1803) was wrongly decided, and that the constitutional document says absolutely nothing about the Supreme Court having this power." So, for instance, if Congress were to pass some law expanding Medicare, and the reactionaries on the court say it's unconstitutional because Cthulhu fhtagn, the president would say "no, I am trusting Congress on this one, and I will continue to operate the program as instructed."
No doubt many liberals will object to this idea. It would be a fairly extreme step in terms of how America's constitutional system functions, and a lot of Democrats fear the idea of a Republican president not being hemmed in by the legal system. Big chunks of liberal political advocacy (like the ACLU) rely on pressing political cases through the courts. Conversely, conservatives have long advanced the idea that they are against "judicial activism," which makes liberals favor it more through negative polarization.
But in retrospect, Jefferson was absolutely right — American-style judicial review is, on balance, terrible. The Supreme Court still has a reasonably good reputation among liberals, probably because of the lingering afterglow of the Warren court's decisions attacking Jim Crow apartheid, and the occasional other rulings advancing civil rights, like when gay marriage was legalized (though this probably only advanced what was already going to happen by a few months). But considered in context, the court has been a bulwark of racism, reaction, and capitalist tyranny for almost its entire existence. Rulings enshrining slavery and Jim Crow, protecting racist murderers, banning basically all public health or labor regulation, or legalizing corruption far outweigh the brief and (not terribly effective) period of Warren court decisions. By the same token, conservatives are lying when they say they are against judicial activism. What they mean is that the legal system should enact their preferences by judicial fiat, and strike down those of Democrats. Judicial review is better for the right than the left, because the right generally wants to stop reforms from being passed, the legal profession is structurally conservative, and the legal system is relatively immune to democratic accountability. All that is why McConnell is stuffing the courts full of right-wing judges. They hide this anti-democratic objective behind overheated rhetoric accusing their opponents of exactly what they are doing.
Others might object that undermining judicial review would violate the rule of law. Indeed, most Americans are taught from a young age that the Supreme Court being able to strike down laws is what it means to have the rule of law. But this is not true. For one thing, as Doreen Lustig and J. H. H. Weiler write in the International Journal of Constitutional Law, judicial review is not nearly as intrusive in every other country as it is here. Some nations, like Austria or France, have a special Constitutional Court which rules on constitutional questions, but relatively infrequently. In others, like Finland or Denmark, judicial review basically never happens. In no other developed democracy does basically every piece of major legislation have to run a years-long gauntlet of tendentious lawsuits trying to get through the courts what parties could not get through the legislature.
Moreover, simply refusing to agree to judicial review has happened before in American history. As historian Matt Karp writes at Jacobin, when the Civil War broke out, President Lincoln and Congress ignored the Dred Scott decision in a law banning slavery in all federal territories, and when Chief Justice Roger B. Taney ruled Lincoln did not have the power to suspend habeas corpus, the president ignored him. As Karp argues, storming the citadel of reactionary court power was necessary to destroy slavery.
It would probably be unwise for an incoming Democratic president to announce immediately he or she is done with judicial review. But it should always be kept in mind as a potential option. Courts can violate the law, the Constitution, and the basic principles of representative democratic government. The lawsuit currently in progress trying to strike down ObamaCare (which will be heard after the election) is so utterly preposterous that should the court agree to it, it will reveal itself to be a judicial tyranny — a lawless negation of legislative power. When confronted with that kind of ruthless usurpation of America's republican values, one should be ready to respond in kind.