A Look at the Current Battle for the Judiciary: Is Turnabout Fair Play?

As president of the American Constitution Society and former member of the US Senate (D – Wisconsin), Russ Feingold views the current US Supreme Court as semi-illegitimate and a source of worry. And it’s not too hard to see where this is coming from given the failed appointment of Merrick Garland, to the rushed appointment of Amy Coney Barrett, and the current push by conservatives for a constitutional convention. Currently, the Court poses a clear danger to rights thought fundamental by progressives (myself included) as evidenced in the recent Dobbs decision (the overturn of Roe v. Wade and Planned Parenthood v. Casey). The reason for alarm is clear; however, there is not a united front among progressives as to the proper response. Feingold and the ACS are advocating for Supreme Court reform by adding seats to the Court and imposing term limits for justices.[1]

There’s no reason this can’t be done. In fact, the idea of packing the court with new justices to gain a political advantage has been attempted by progressives once before.[2] During the Great Depression, then-president Franklin Roosevelt was having difficulty getting his New Deal programs aimed at creating economic growth to be seen as constitutional by the then-sitting Court. FDR threatened to change the number of justices on the Court to 12 and, as the sitting president, FDR would be the one to select the new justices. Though the expansion never happened, the Supreme Court completely changed its views on elements of the New Deal due to this threat, starting with Wickard v. Filburn.[3]

Pictured: A political cartoon from the time.

Wickard was an extreme departure from the prior decisions of the Court. The case revolved around a New Deal era law that prohibited farmers from growing more than an allotted amount of crops (which, in theory, would drive prices – and thus, farmer profits – up). A certain farmer grew his allotted amount of wheat, but grew a bit more wheat for internal uses (feed for animals and whatnot). The farmer argued that, because the extra wheat was used internally, the Federal Government had no authority to regulate it. In prior decisions, SCOTUS held that the Federal Government’s power was limited to clear interstate (multiple states) issues. However, after being threatened with court packing, SCOTUS changed its tune and upheld the law as constitutional. The Court held that, though the Federal Government was still limited to regulating interstate commerce, animal feed was a good that was traded over state lines. Thus, by growing his own, the farmer was affecting interstate prices slightly – and therefore the regulation was constitutional. The reasoning is a bit tortured and the holding has been tempered by modern caselaw. Indeed, the Wickard era is considered one of the high watermarks of the Federal Government’s power. Though the number of justices did not change, this threat to pack the court accomplished what it set out to do.

But back to the present day and the ACS’s/Feingold’s proposals.

Pictured: My boy Russ.

Though there have been some procedural fights, conservatives have been the clear winner in creating and implementing such (I would argue underhanded) strategies. Progressives simply lacked the power to do the same due to a Republican President and majority of Congress. Now, the shoe is on the other foot with both a Democratic President and a more Democratic Congress. The Democratic Party is in a similar – though not quite as advantageous – position to where the Republicans were under Trump. The question is whether or not to use the same tactics to attempt to solidify a progressive position.

I had the opportunity to ask Sen. Feingold a question at one of his recent events. I asked, if progressives resort to these kinds of tactics, what is there to prevent conservatives from doing the same thing? His response was that conservatives were already using underhanded tactics[4] and that progressives needs to consider these strategies if they are to survive. To this, it is a fair point that conservatives already have thrown the spirit of the Court aside in favor of appointing justices with certain ideological beliefs – any actions that progressives take would be in addition to whatever is already happening. Using these tactics is unlikely to change or sway the conservative strategy.

However, engaging in similar procedural tactics paves the way for an even more dangerous Supreme Court because it legitimizes those strategies. Once progressives use these strategies, it cedes the argument that the tactics themselves are illegitimate. Indeed, it may embolden conservatives to push harder as they are no longer subject to this critique. This would solidify the idea that the Supreme Court is now a political institution, rather than a detached referee.

Pictured: A pillar of the republic, if you can keep it.

If progressives use this opportunity to further politicize the Court via court packing or finding ways to limit the terms of young appointees, we should at least recognize that the role of the Supreme Court as an impartial referee is over. If this is the path progressives decide to take, I would be in favor of imposing term limits and implementing other procedural safeguards. The reason these were not in place already is because the Court (and the judiciary as a whole) was meant to be as detached from the political arena as much as possible. This is why we currently have lifetime appointments – if you can’t fire a justice, it is far harder to make them beholden to a political party.

But progressives (thankfully) have not committed to this path yet. Progressives have a choice as to whether they want to give up on the historic role of the Court or attempt to save it. I believe that the latter is the best choice. I may be accused of being naïve here as I am largely ignoring the urgency of the current situation in favor of an ideal. And, to be honest, this is a fair critique. My argument assumes that some form of the current government survives the onslaught from conservatives. It also ignores the fact that, without adding seats or imposing term limits, the Supreme Court will swing conservative for quite some time as the three Trump appointees have been on the younger side and will stay in the seats for life (or until they retire). There is no telling what could happen because of this.

However, looking towards the future, it is almost certain that there will be another Republican president and congressional majority at some point as the balance of power has historically swung both ways. Examples set now as to what is fair play will affect how devastating the effects will be down the road. If progressives are able to safeguard the integrity of the institution without resorting to procedural loopholes, it will make it harder for a conservative majority to erode the Supreme Court’s role. Alternatively, if progressives legitimize these strategies, it will embolden the next conservative regime to not hold back.

[1] https://www.acslaw.org/projects/supreme-court-reform [2] The number of justices has actually been changed a few times before. Prior to 1869, the number of justices changed six times before settling on the current number of 9, where it remains today. Interestingly, one of these changes was just after the US Civil War where the number of justices was changed to 10 to ensure that President Andrew Johnson faced a pro-Union majority on the Court. [3] What follows is a gross oversimplification of Wickard. If you are interested, I recommend you check out the Wikipedia page or go to law school – your pick. [4] Indeed, I agree that it is necessary to fight the current conservative exploitation of constitutional and legal loopholes to limit future damage to the institution.