Does the Supreme Court Need Fixing? If So, Why and How?
An op-ed forum in today’s New York Times includes some interesting ideas for “How to Fix the Supreme Court.” But evaluating them requires clarifying exactly what, if anything, is broken about the Supreme Court. The eight authors describe several problems, ranging from undeniable (e.g., an increasingly partisan and rancorous process for selecting justices) to misconceived (e.g., a Court that is insufficiently deferential to progressive policy preferences).
New York Times Magazine staff writer Emily Bazelon’s introduction falls into the latter category. Bazelon says the Court “can, and often should, be the protector of minorities whom the majority may trample (including religious groups, a current concern of conservatives).” She cites Brown v. Board of Education, the 1954 decision that overturned racial segregation in public schools, as a good example that has been “embraced by every recent nominee to the court, across the ideological spectrum.” And during the 1960s and ’70s, she notes, “liberals…came to rely on the court to protect civil rights and prevent the establishment of religion, even when doing so was out of step with the views of the public.”
Bazelon is less keen on other judicial vetoes of the majority’s will, such as the Court’s 1905 decision in Lochner v. New York, which overturned state limits on how many hours bakers could work each day and each week. Through decisions like that, she says, “the court discredited itself by putting the interests of corporations above those of workers.”
That framing seems dubious, since the rigid regulations at issue in Lochner put small businesses such as the Utica bakery owned by the plaintiff at a special disadvantage. You could say the Supreme Court sided with the little guy by upholding freedom of contract.
In any case, shouldn’t Lochner be judged by the soundness of its constitutional reasoning, as oppose to the “interests” it favored? Although the decision is widely criticized by both progressives (for reasons similar to Bazelon’s) and conservatives (for its “activism” and its reliance on “substantive due process”), there is strong evidence that the economic liberty it defended was supposed to be protected by the 14th Amendment, as Damon Root points out.
Similarly, Bazelon worries about the possibility that the Supreme Court’s conservative majority, reinforced by the replacement of Ruth Bader Ginsburg with Amy Coney Barrett, will overturn the Patient Protection and Affordable Care Act. Although Democrats played up that supposed danger during Barrett’s confirmation hearing, it seems to be mostly a figment of their imagination. But if the justices dare to nix Obamacare, Bazelon says, “they risk overplaying their hand much as the conservative majority did in the 1930s,” when
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