What it Takes to Curb the Court

It is that time again, as it seems to be every several generations, when Court-curbing is in the air. And yet, this period of Court-curbing is importantly different from prior times in which Court-curbing was successful. Start with this obvious point: in prior instances in which attacks on the Court succeeded in some fashion, the challengers had the political muscle to threaten the Court. Now, to be blunt, they don’t have the votes. For that reason alone, much of today’s talk of curbing the Court is overly optimistic at best. The central question I pursue here is what it would take for the Court to be in actual jeopardy? Drawing from history, I derive a simple set of requirements. There must be a well-defined crisis, as opposed to diffuse frustration and dread about the Court. There also must be a focused, close fit between the nature of the crisis and the proposed remedy. Both of these are necessary to get public support behind a Court-curbing measure. And third, of course, is the votes: support in the political branches is essential to take action against the Court, for the public—no matter how discontent it might be—cannot punish the Court alone. None of this is the case at present. There is indeed a crisis surrounding the Court, but it is a collection of varied concerns. There is no one focal remedy, but a mélange of proposals. Some Court decisions are out of line with public sentiment and have engendered majoritarian controversy, but other decisions, while unpopular on the left, still have majority support in the country. Perhaps most important, the political system has slid into dysfunction such that it no longer represents majority will anyway—making it extremely difficult to challenge the Court, even if the justices slide over the line. The final question I take up is what the future might hold. I explore a range of possibilities, from bipartisan support for structural change around the selection system for Supreme Court justices to the justices moving so boldly that they get in hot water and are disciplined. Ultimately, though, I fear outcomes such as these are unlikely, ultimately driving the country toward constitutional crisis.