While many argue that America’s founding document must be completely overhauled, reforming the Supreme Court may well be sufficient. And with the Electoral College and the Senate politically off-limits, bringing the Court into the twenty-first century may have to suffice.
LONDON – Calling the United States a democracy has become a bit of a stretch. Even the country’s (and the world’s) most feted democratic event is an illusion of popular will. Owing to the Electoral College, most Americans’ votes for president are ultimately irrelevant. The outcome depends not on the collective desire of the American people, but rather on the whims of a tiny sliver of voters in a few counties in a few states.
Legislative elections are little better, thanks to the distortive effects of gerrymandering, whereby partisan officials draw Dalí-esque electoral districts to benefit their own party. It is a case of politicians choosing their voters, with the skill of the cartographer more important than the wants of the people.
The upshot is that presidents often do not command the confidence of most of the country, and legislators are more interested in pandering to their base than serving the country’s interests. If there was a credible, independent check on these two branches of government, it could keep America on its constitutional rails and prevent politicians from veering off toward autocracy or mob rule. But there is not, because the US constitution is guarded by a Supreme Court whose current members not only embrace political partisanship, but wallow in it.
No longer do some justices even pretend to be calling “balls and strikes,” as Chief Justice John Roberts famously put it at his confirmation hearing 19 years ago. In the big cases that truly matter, justices ultimately will cleave to their sectarian identities, using politics, rather than the law, as their guide. Although they will cite the text of the Constitution and pay lip service to fundamental judicial principles, these references are there not to ground the decision but to conceal the politics.
A Constitution for Another Time
In No Democracy Lasts Forever: How the Constitution Threatens the United States, Erwin Chemerinsky, the dean of Berkeley Law School, concludes that the only solution to America’s constitutional predicament is to start over. If America is to remain a democracy, he argues, tinkering with the system – whether by judicial fiat or constitutional amendment – may not be enough. Only by going back to the beginning might it be possible to undo the fundamental flaws at the core of America’s constitutional order.
Chemerinsky wants us to recognize that no one setting out to establish a democratic political system today would draft anything like the US founding charter. Even if you take the constitution as it was after the Civil War – when slavery finally lost its legal protection, and the franchise had been expanded beyond property-owning men – you would have a fundamentally dysfunctional document. You would have a constitution that valorizes free speech at the cost of true speech, elevates gun ownership above almost everything else, and disproportionately weights the views of citizens who live in states that are more prairie and mountain than city and town.
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As Chemerinsky puts it, “the Southern and Midwestern states that have disproportionate power in the Electoral College are red [Republican], while the states with the largest underrepresented urban populations are blue [Democratic].” Couple these structural forces with the country’s changing demographics and you “may make misfire elections much more common.” Wyoming, with a population of 581,000, has the same number of senators as California, with its population of 39 million. Of course, those who cite this statistic often ignore its counterpart: Texas (31 million) has the same number of senators as tiny Rhode Island (1.1 million).
There were good reasons for many of these oddities at the beginning. But that was two and a half centuries ago. Writing at a time when political systems were vulnerable either to tyranny or mob rule, America’s founders were seeking to chart a new course. But they did not assume that they were drafting a document to stand for all time. There was no expectation that what worked in 1787 would work in 2024. On the contrary, the drafters ensured that the constitution could be amended, so that it could grow and develop as the country did. They were crafting “political compromises on all issues,” not declaiming holy writ for the ages.
Missing the Mark
Chemerinsky offers various proposals to update and fix the system, ultimately concluding that America needs a new constitution. His first priority is to abolish or reform the Electoral College. But even if this was done, it would not fundamentally alter the constitutional and political landscape. For all of its absurdities, and for all the attention it gets every four years, the Electoral College has returned a president who lost the popular vote on only two occasions since the nineteenth century, when it did so three times.
Yes, those two occasions include two of the last six presidential elections, in 2000 and 2016, both resulting in a Republican victory, and the same could happen again this year. But fixating on the Electoral College ignores the elephant in the room: America is divided down the middle between red and blue. Though the Electoral College benefits Republican presidential candidates, the popular vote would benefit Democrats. The Electoral College nudges the dial for president toward the red, and the popular vote would nudge it toward the blue. On this basis alone, the Republican Party will never permit a reform.
Chemerinsky’s second key reform concerns the Senate, where he thinks representation should be reallocated to reflect demography rather than geography. Chemerinsky acknowledges that an equal distribution of senators among the states was “essential to creating the Constitution,” even if it made “the Senate significantly undemocratic from the start.” But it is not clear that it has become less essential, even if the imbalance is “far more disturbing today as the disparity in population … has grown enormously over time.” Parity in the Senate recognizes the contribution of each sovereign state to the American project. Reallocating senators based on population would undermine this. The 50 states may be equal, but some would be more equal than others.
Moreover, Chemerinsky’s solution would elevate America’s urban centers (which lean blue) at the cost of rural districts (which lean red), again raising the question of why a collection of states that cannot agree on even moderate reforms would ever come together to overhaul the entire system. Republicans are fully aware that they benefit from a status quo that rewards geography over demography.
Acknowledging this, Chemerinsky points out that major reforms of America’s political order have always necessarily come during periods of great division, and often at great cost. Most obviously, it took a civil war to abolish slavery. But if an attempted coup and a violent insurrection at the Capitol were not enough to convince Republicans of the need for change, it is unclear what would.
Purblind Justice
Fortunately, there is a more straightforward potential solution. All of the fundamental flaws that Chemerinsky identifies are reparable by the courts, with the exception of senatorial representation and the Electoral College. Gerrymandering, campaign finance, free speech, and other issues can all – and have been – brought before the judiciary. Ever since Marbury v. Madison(1803), the Supreme Court’s authority to settle otherwise divisive constitutional matters has been substantial, if not unquestioned.
Since diving headfirst into the thicket of constitutional conundrums at the dawn of the republic, the Court has never retreated. At various points in time, it has affirmed the constitutionality of slavery, upheld gerrymandering, awarded corporations the same right to free speech as citizens, and forbidden states from regulating banks, guns, and health care. It has proven willing to recognize constitutional rights and to take them away. As Alexis de Tocqueville foresaw, every political question in America eventually becomes a judicial one.
But the Supreme Court’s authority per se is not a concern. Though some commentators may bemoan the fact that an unelected body wields such power, the role of the judiciary is a core feature of liberal democracy. It is a vital safeguard to keep the state from going down the path of autocracy or mob rule. But it absolutely is concerning that the Supreme Court has become more of a political body than a judicial one.
True, the Court has never been free of politics and factionalism. Marbury was written by Chief Justice John Marshall, who had served as President John Adams’s Secretary of State before his appointment to the bench. But even if Marshall’s judgment was colored by extrajudicial factors, it ultimately stood on its own two feet. By contrast, later Supreme Court benches have been less adept at casting their political decisions as judicial ones.
Until this century, the most obvious period of apparent politicization was the 1897-1937 Lochner era, which culminated in the clashes between the Court and President Franklin D. Roosevelt. Five of the Court’s nine justices were vehemently opposed to the New Deal and sought to smother it in its crib. Chief Justice Charles Evans Hughes, a former Republican presidential candidate, consistently joined with the conservative “Four Horsemen” on the Court to strike down flagship policies like the National Industrial Recovery Act of 1933, as well as the Roosevelt administration’s attempts to regulate coal mining and agriculture. Each measure was deemed to lie beyond the constitutional competence of Congress or the White House.
The ostensible intellectual basis for this evisceration of government policy was the Four Horsemen’s commitment to “originalism.” Insisting that the meaning of the Constitution was fixed at the moment of its ratification, they claimed they were obliged to interpret its text accordingly. Never mind that the founders expressly repudiated this approach. The problem with originalism is not only that it is inconsistent with original intent; it is that it is inconsistent with reality.
As any competent historian would point out, it is impossible to know exactly what historical figures were thinking when they arrived at major decisions. The best that historians can do is offer interpretations or inferences based on the evidence. Unlike Supreme Court justices, they do not presume that their hypotheses should be used to ground contemporary law and policies that affect hundreds of millions of people.
Yet originalism – or at least its bastard child, “textualism” – persists. Under the guiding hand of the late Antonin Scalia and his acolyte, Clarence Thomas, it became the Court’s most prominent judicial philosophy in recent decades. As Elena Kagan, appointed by President Barack Obama, told the Senate in her confirmation hearing: “We are all originalists now.”
Fight Fire with Water
In the 1930s, Roosevelt prevailed by beating the Four Horsemen at their own political game. Discussing Supreme Court reform during one of his nationally broadcast “fireside chats,” he asked how the Court could be made to “resume its high task of building anew on the Constitution ‘a system of living law.’” The solution, he proposed, was to add a new justice for every sitting justice over the age of 70. In practice, this would have meant adding six new justices to the bench immediately.
Roosevelt’s “court-packing” scheme made no progress; but nor did he need it to. With the idea of reform wafting through Washington, the next piece of New Deal legislation to come before the court was duly upheld. The New Deal was constitutional after all.
US President Joe Biden tried to play a similar hand with the reforms he proposed this summer. But like Roosevelt, his proposed reforms would have maintained the Court’s status as a political body first, and a legal one second. For example, introducing term limits and a binding code of ethics might rein in the Court, but it would not alter the politically charged appointment process or the political character of the Court.
Chemerinsky makes the same mistake. He is correct to note that today’s Court has degraded American democracy with decisions like Citizens United v. Federal Election Commission (2010), which allowed corporations to “spend unlimited sums” on elections. But in echoing the proposal for judicial term limits, he assumes that judges are “largely insulated from majoritarian politics,” when in fact they are political partisans from the outset. Term limits might address absurdities like the fact that Thomas has been on the Court since some of the lawyers who appear before him were born. But they would not change the fact that Thomas is an unapologetic partisan who will be succeeded by yet another one.
The real challenge for America is to move to a system where judicial decisions are handed down not by “Democratic judges” or “Republican judges,” but just by judges. For Supreme Court justices to be more than “politicians in robes,” the appointment process would need to be completely overhauled.
America the Exceptional
No other country leaves the selection of top judicial officials wholly to the executive and legislative branches. For example, in the United Kingdom, the Lord Chancellor recommends a candidate to the prime minister, but only after a judicial-appointments commission has completed its due diligence. When a spot on the bench opens up, judges (and senior lawyers) who meet the criteria are invited to apply, and some are short-listed for interviews before a panel of senior judges and lawyers. The Lord Chancellor is the sole partisan voice. After interviewing multiple candidates, the panel makes its recommendation to the government. While the prime minister may reject the nominee, this never happens.
The UK’s appointment process does not ensure that judges are immune from criticism and accusations of political bias; but it does ensure that such blows rarely land. When the UK Supreme Court challenged elements of the government’s strategy to withdraw the country from the European Union, the right-wing media tried to smear the presiding judges as “enemies of the people.” But unlike in the US, where such litigation would have spiraled into a political fracas, these attacks were soon forgotten. The Supreme Court issued its ruling, the government complied, and the UK left the EU in a constitutional fashion.
Much the same goes for other leading liberal democracies, including Canada, Germany, and France. While there may be varying degrees of political involvement in each system, it is always contained, and the judges remain above the partisan fray.
A non-partisan US Supreme Court would bring a politically dispassionate gaze to bear on issues like gerrymandering, abortion, gun rights, or future challenges to an election result. It also could restore some of the credibility it has lost in recent decades. Previously one of the most respected institutions in American politics, with approval ratings above 60%, its decisions were generally respected. Under Roberts’s stewardship, however, it has become an institution unworthy of respect and unable to command it. According to the Pew Research Center, a mere 47% of Americans approve of it – a near-historic low. Such findings suggest that even some Trump supporters are skeptical of their pet court.
Chemerinsky argues that the whole constitution needs uprooting, and maybe it does. But reforming the Supreme Court may well be sufficient. And with the Electoral College and the Senate off-limits, bringing the Court into the twenty-first century may have to suffice.
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LONDON – Calling the United States a democracy has become a bit of a stretch. Even the country’s (and the world’s) most feted democratic event is an illusion of popular will. Owing to the Electoral College, most Americans’ votes for president are ultimately irrelevant. The outcome depends not on the collective desire of the American people, but rather on the whims of a tiny sliver of voters in a few counties in a few states.
Legislative elections are little better, thanks to the distortive effects of gerrymandering, whereby partisan officials draw Dalí-esque electoral districts to benefit their own party. It is a case of politicians choosing their voters, with the skill of the cartographer more important than the wants of the people.
The upshot is that presidents often do not command the confidence of most of the country, and legislators are more interested in pandering to their base than serving the country’s interests. If there was a credible, independent check on these two branches of government, it could keep America on its constitutional rails and prevent politicians from veering off toward autocracy or mob rule. But there is not, because the US constitution is guarded by a Supreme Court whose current members not only embrace political partisanship, but wallow in it.
No longer do some justices even pretend to be calling “balls and strikes,” as Chief Justice John Roberts famously put it at his confirmation hearing 19 years ago. In the big cases that truly matter, justices ultimately will cleave to their sectarian identities, using politics, rather than the law, as their guide. Although they will cite the text of the Constitution and pay lip service to fundamental judicial principles, these references are there not to ground the decision but to conceal the politics.
A Constitution for Another Time
In No Democracy Lasts Forever: How the Constitution Threatens the United States, Erwin Chemerinsky, the dean of Berkeley Law School, concludes that the only solution to America’s constitutional predicament is to start over. If America is to remain a democracy, he argues, tinkering with the system – whether by judicial fiat or constitutional amendment – may not be enough. Only by going back to the beginning might it be possible to undo the fundamental flaws at the core of America’s constitutional order.
Chemerinsky wants us to recognize that no one setting out to establish a democratic political system today would draft anything like the US founding charter. Even if you take the constitution as it was after the Civil War – when slavery finally lost its legal protection, and the franchise had been expanded beyond property-owning men – you would have a fundamentally dysfunctional document. You would have a constitution that valorizes free speech at the cost of true speech, elevates gun ownership above almost everything else, and disproportionately weights the views of citizens who live in states that are more prairie and mountain than city and town.
Secure your copy of PS Quarterly: The Climate Crucible
The newest issue of our magazine, PS Quarterly: The Climate Crucible, is here. To gain digital access to all of the magazine’s content, and receive your print copy, subscribe to PS Premium now.
Subscribe Now
As Chemerinsky puts it, “the Southern and Midwestern states that have disproportionate power in the Electoral College are red [Republican], while the states with the largest underrepresented urban populations are blue [Democratic].” Couple these structural forces with the country’s changing demographics and you “may make misfire elections much more common.” Wyoming, with a population of 581,000, has the same number of senators as California, with its population of 39 million. Of course, those who cite this statistic often ignore its counterpart: Texas (31 million) has the same number of senators as tiny Rhode Island (1.1 million).
There were good reasons for many of these oddities at the beginning. But that was two and a half centuries ago. Writing at a time when political systems were vulnerable either to tyranny or mob rule, America’s founders were seeking to chart a new course. But they did not assume that they were drafting a document to stand for all time. There was no expectation that what worked in 1787 would work in 2024. On the contrary, the drafters ensured that the constitution could be amended, so that it could grow and develop as the country did. They were crafting “political compromises on all issues,” not declaiming holy writ for the ages.
Missing the Mark
Chemerinsky offers various proposals to update and fix the system, ultimately concluding that America needs a new constitution. His first priority is to abolish or reform the Electoral College. But even if this was done, it would not fundamentally alter the constitutional and political landscape. For all of its absurdities, and for all the attention it gets every four years, the Electoral College has returned a president who lost the popular vote on only two occasions since the nineteenth century, when it did so three times.
Yes, those two occasions include two of the last six presidential elections, in 2000 and 2016, both resulting in a Republican victory, and the same could happen again this year. But fixating on the Electoral College ignores the elephant in the room: America is divided down the middle between red and blue. Though the Electoral College benefits Republican presidential candidates, the popular vote would benefit Democrats. The Electoral College nudges the dial for president toward the red, and the popular vote would nudge it toward the blue. On this basis alone, the Republican Party will never permit a reform.
Chemerinsky’s second key reform concerns the Senate, where he thinks representation should be reallocated to reflect demography rather than geography. Chemerinsky acknowledges that an equal distribution of senators among the states was “essential to creating the Constitution,” even if it made “the Senate significantly undemocratic from the start.” But it is not clear that it has become less essential, even if the imbalance is “far more disturbing today as the disparity in population … has grown enormously over time.” Parity in the Senate recognizes the contribution of each sovereign state to the American project. Reallocating senators based on population would undermine this. The 50 states may be equal, but some would be more equal than others.
Moreover, Chemerinsky’s solution would elevate America’s urban centers (which lean blue) at the cost of rural districts (which lean red), again raising the question of why a collection of states that cannot agree on even moderate reforms would ever come together to overhaul the entire system. Republicans are fully aware that they benefit from a status quo that rewards geography over demography.
Acknowledging this, Chemerinsky points out that major reforms of America’s political order have always necessarily come during periods of great division, and often at great cost. Most obviously, it took a civil war to abolish slavery. But if an attempted coup and a violent insurrection at the Capitol were not enough to convince Republicans of the need for change, it is unclear what would.
Purblind Justice
Fortunately, there is a more straightforward potential solution. All of the fundamental flaws that Chemerinsky identifies are reparable by the courts, with the exception of senatorial representation and the Electoral College. Gerrymandering, campaign finance, free speech, and other issues can all – and have been – brought before the judiciary. Ever since Marbury v. Madison (1803), the Supreme Court’s authority to settle otherwise divisive constitutional matters has been substantial, if not unquestioned.
Since diving headfirst into the thicket of constitutional conundrums at the dawn of the republic, the Court has never retreated. At various points in time, it has affirmed the constitutionality of slavery, upheld gerrymandering, awarded corporations the same right to free speech as citizens, and forbidden states from regulating banks, guns, and health care. It has proven willing to recognize constitutional rights and to take them away. As Alexis de Tocqueville foresaw, every political question in America eventually becomes a judicial one.
But the Supreme Court’s authority per se is not a concern. Though some commentators may bemoan the fact that an unelected body wields such power, the role of the judiciary is a core feature of liberal democracy. It is a vital safeguard to keep the state from going down the path of autocracy or mob rule. But it absolutely is concerning that the Supreme Court has become more of a political body than a judicial one.
True, the Court has never been free of politics and factionalism. Marbury was written by Chief Justice John Marshall, who had served as President John Adams’s Secretary of State before his appointment to the bench. But even if Marshall’s judgment was colored by extrajudicial factors, it ultimately stood on its own two feet. By contrast, later Supreme Court benches have been less adept at casting their political decisions as judicial ones.
Until this century, the most obvious period of apparent politicization was the 1897-1937 Lochner era, which culminated in the clashes between the Court and President Franklin D. Roosevelt. Five of the Court’s nine justices were vehemently opposed to the New Deal and sought to smother it in its crib. Chief Justice Charles Evans Hughes, a former Republican presidential candidate, consistently joined with the conservative “Four Horsemen” on the Court to strike down flagship policies like the National Industrial Recovery Act of 1933, as well as the Roosevelt administration’s attempts to regulate coal mining and agriculture. Each measure was deemed to lie beyond the constitutional competence of Congress or the White House.
The ostensible intellectual basis for this evisceration of government policy was the Four Horsemen’s commitment to “originalism.” Insisting that the meaning of the Constitution was fixed at the moment of its ratification, they claimed they were obliged to interpret its text accordingly. Never mind that the founders expressly repudiated this approach. The problem with originalism is not only that it is inconsistent with original intent; it is that it is inconsistent with reality.
As any competent historian would point out, it is impossible to know exactly what historical figures were thinking when they arrived at major decisions. The best that historians can do is offer interpretations or inferences based on the evidence. Unlike Supreme Court justices, they do not presume that their hypotheses should be used to ground contemporary law and policies that affect hundreds of millions of people.
Yet originalism – or at least its bastard child, “textualism” – persists. Under the guiding hand of the late Antonin Scalia and his acolyte, Clarence Thomas, it became the Court’s most prominent judicial philosophy in recent decades. As Elena Kagan, appointed by President Barack Obama, told the Senate in her confirmation hearing: “We are all originalists now.”
Fight Fire with Water
In the 1930s, Roosevelt prevailed by beating the Four Horsemen at their own political game. Discussing Supreme Court reform during one of his nationally broadcast “fireside chats,” he asked how the Court could be made to “resume its high task of building anew on the Constitution ‘a system of living law.’” The solution, he proposed, was to add a new justice for every sitting justice over the age of 70. In practice, this would have meant adding six new justices to the bench immediately.
Roosevelt’s “court-packing” scheme made no progress; but nor did he need it to. With the idea of reform wafting through Washington, the next piece of New Deal legislation to come before the court was duly upheld. The New Deal was constitutional after all.
US President Joe Biden tried to play a similar hand with the reforms he proposed this summer. But like Roosevelt, his proposed reforms would have maintained the Court’s status as a political body first, and a legal one second. For example, introducing term limits and a binding code of ethics might rein in the Court, but it would not alter the politically charged appointment process or the political character of the Court.
Chemerinsky makes the same mistake. He is correct to note that today’s Court has degraded American democracy with decisions like Citizens United v. Federal Election Commission (2010), which allowed corporations to “spend unlimited sums” on elections. But in echoing the proposal for judicial term limits, he assumes that judges are “largely insulated from majoritarian politics,” when in fact they are political partisans from the outset. Term limits might address absurdities like the fact that Thomas has been on the Court since some of the lawyers who appear before him were born. But they would not change the fact that Thomas is an unapologetic partisan who will be succeeded by yet another one.
The real challenge for America is to move to a system where judicial decisions are handed down not by “Democratic judges” or “Republican judges,” but just by judges. For Supreme Court justices to be more than “politicians in robes,” the appointment process would need to be completely overhauled.
America the Exceptional
No other country leaves the selection of top judicial officials wholly to the executive and legislative branches. For example, in the United Kingdom, the Lord Chancellor recommends a candidate to the prime minister, but only after a judicial-appointments commission has completed its due diligence. When a spot on the bench opens up, judges (and senior lawyers) who meet the criteria are invited to apply, and some are short-listed for interviews before a panel of senior judges and lawyers. The Lord Chancellor is the sole partisan voice. After interviewing multiple candidates, the panel makes its recommendation to the government. While the prime minister may reject the nominee, this never happens.
The UK’s appointment process does not ensure that judges are immune from criticism and accusations of political bias; but it does ensure that such blows rarely land. When the UK Supreme Court challenged elements of the government’s strategy to withdraw the country from the European Union, the right-wing media tried to smear the presiding judges as “enemies of the people.” But unlike in the US, where such litigation would have spiraled into a political fracas, these attacks were soon forgotten. The Supreme Court issued its ruling, the government complied, and the UK left the EU in a constitutional fashion.
Much the same goes for other leading liberal democracies, including Canada, Germany, and France. While there may be varying degrees of political involvement in each system, it is always contained, and the judges remain above the partisan fray.
A non-partisan US Supreme Court would bring a politically dispassionate gaze to bear on issues like gerrymandering, abortion, gun rights, or future challenges to an election result. It also could restore some of the credibility it has lost in recent decades. Previously one of the most respected institutions in American politics, with approval ratings above 60%, its decisions were generally respected. Under Roberts’s stewardship, however, it has become an institution unworthy of respect and unable to command it. According to the Pew Research Center, a mere 47% of Americans approve of it – a near-historic low. Such findings suggest that even some Trump supporters are skeptical of their pet court.
Chemerinsky argues that the whole constitution needs uprooting, and maybe it does. But reforming the Supreme Court may well be sufficient. And with the Electoral College and the Senate off-limits, bringing the Court into the twenty-first century may have to suffice.