David French’s defense of Kamala Harris’s plan to replace conservative Supreme Court justices can’t conceal what it’s about.
David French’s defense of Kamala Harris’s plan to replace conservative Supreme Court justices can’t conceal what it’s about.
T he Supreme Court’s enemies are up to no good. I am greatly disappointed to find David French among them.
French’s latest newsletter column is a defense of restructuring the Court. It is full of all the partisan propaganda and evasion that we have come to expect from this cause. Even after his endorsement of Kamala Harris, I had expected better from French.
Why Now?
The column goes off the rails right from the title: “Supreme Court Reform Is in the Air.” First, to call the Democrats’ proposals “reform” is to take partisan sides by parroting one side’s loaded talking points. If you wouldn’t describe Benjamin Netanyahu’s proposals to overhaul the Israeli judiciary as “reform,” you shouldn’t use that term here. These are proposals to fundamentally restructure how the United States Supreme Court has been staffed since 1789. An honest discussion would treat them as a proposal for radical change, not whitewash them with the flattering moniker of “reform.”
Second, these proposals are not “in the air.” They are not emanating from multiple sources in different places on the partisan and ideological spectrum. They are not generated by an impersonal History, before which we must simply stand aside. We would not say that building a wall across the Mexican border is “in the air.” These are the specific ideological demands of one political party. They have been pushed by a particular coterie of activists, all of whom have essentially the same desired policy ends in mind. They arose out of one party’s presidential primaries and its Senate Judiciary Committee members. They were on nobody’s agenda until after Neil Gorsuch and Brett Kavanaugh were appointed to the Supreme Court. We heard a quite different tune in 2016 when Mark Tushnet was arguing for a triumphal march of liberal and progressive ideology through the courts on the premise that “right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents. . . . Those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions.”
An honest accounting would be frank about the fact that these proposals came about for only one reason: There’s a conservative majority on the Court for the first time since 1930, and liberals and progressives don’t think it’s legitimate for our side to ever get what their side has enjoyed in the past.
The sole reason we are talking about restructuring the Supreme Court is that liberals and progressives are unhappy with the outcomes of its decisions. That’s the thing. It’s the whole thing. It’s the only thing. It’s the entirety of the thing. It’s 100 percent of the thing. There’s no other thing. And if you are endeavoring now to make a purportedly conservative (or at least non-ideological) case for restructuring, you need to first explain why it is that liberals and progressives being unhappy with outcomes is, in and of itself, a crisis. Why is it not a permissible result of a political process that liberals and progressives get something they dislike? Why is that not legitimate? Why, specifically, does it change the legitimacy of a system that was acceptable when it delivered outcomes that liberals and progressives liked?
French speaks of “instability and anger that harm the court and threaten the rule of law.” Whose anger? Why is the anger of progressives an infallible sign that something must be given to them to assuage it? Do we treat conservatives, let alone MAGA Republicans, as if the mere fact of their anger requires a restructuring of the existing rules to let them win? French typically treats the anger of Donald Trump’s devotees as a problem for the system to resist, not a cause for it to give them more of what they want.
It took years and a bunch of election wins for liberals and progressives to dominate the Court during the New Deal, and dominate it they did. The Court minted vast new fields of constitutional doctrine, much of which is still with us today. They moved the legal profession, the Senate, and the political culture so far with their aggressively partisan and ideological jurisprudence that Dwight Eisenhower’s presidency barely made a dent, and in the 1960s and early 1970s the Court continued its march to the left, delivering another unprecedented string of novel innovations in the law. Most of that is still with us, too, even after the overturning of Roe v. Wade.
French complains that “the purpose of lifetime tenure is supposed to be to secure judicial independence, not to secure decades of ideological advantage on the court.” But one side already got those decades of ideological advantage, and its current proposals are aimed at protecting it. French isn’t proposing that liberals and progressives be made to give back the winnings of this period; to the contrary, much of the point of appeals to “bipartisan” moderation is to make it harder to undo the one-way ratchet effect of left-legal adventurism. It’s only a problem when conservatives, who played by the rules and labored decades to win control of the Court through the winning of elections by the rules of the American political system, have attained their aim. Then, we need to change things.
The Harris Agenda
That’s why Democrats want this. Why is French writing on this topic? Consider his own asserted reason:
I’m raising this issue in part because fear of court packing is one of Republicans’ most potent arguments to keep conservatives from crossing the aisle and voting for Kamala Harris — and because, in her first run for president, Harris herself indicated that she was “open” to expanding the court. She has since endorsed Biden’s plan for term limits. She was wrong in 2019, and she is right in 2024.
If your starting point is that you have to eliminate “one of Republicans’ most potent arguments to keep conservatives from . . . voting for Kamala Harris,” you’re predetermining your conclusion, which is that Harris’s current position must be one you can defend.
Moreover, in my criticism of French’s endorsement of Harris, and in Charlie Cooke’s pointed questions to French on Charlie’s podcast, we noted Harris’s prior support for Court-packing, and French insisted that she presented no danger of proposing such a thing. That paints him into the corner of having to argue that her current position is meaningfully improved from her 2019 stance and that we should believe that she’s not just lying or being vague about the details in order to get through an election, after the fashion of Bill Clinton promising a middle-class tax cut, Barack Obama insisting that he was against same-sex marriage, Franklin D. Roosevelt railing against deficit spending, or Woodrow Wilson running on “He Kept Us Out of War.” In fact, as I noted earlier this week in response to a similar argument from Jonathan Chait, one of the top aides to the Harris campaign is Brian Fallon — previously executive director of the pro-Court-packing group Demand Justice — and statements from Court-packing advocates such as Sheldon Whitehouse indicate that activists see Harris as more sympathetic to the cause than Joe Biden but restrained for now by the desire to avoid breaking with Biden.
It also runs contrary to French’s argument that we need worry less about Harris’s tendency toward lawless imperial executive action because the Court has stopped Biden and trimmed back the administrative state. Yes, that would reassure me more if Harris weren’t coming for the Court with the aim of reversing those precedents.
Hiding the Ball
What’s in the Biden-Harris proposal that French defends? He has to paint a whitewashed picture of it. Whitehouse’s bill, backed by seven other Democratic senators (making up the bulk of the Democratic membership of the Judiciary Committee) provides, “this Act . . . shall apply beginning on the date on which the first full term of a President commences . . . after the date of enactment of this Act.” But it says nothing about exempting from its term limits the currently sitting justices, so once in effect, it would move currently sitting members of the Court out of their positions, for the purpose of changing the ideological composition of the Court. This is not a strictly prospective change applicable only to future appointees.
The proposal for “term limits” by Biden and Harris has been deliberately vague on whether it would all be done legislatively and on whether it applies to oust sitting justices, but Whitehouse applauded the proposal, and its entire appeal to progressive activists is that it would pick Justices Clarence Thomas and Samuel Alito and Chief Justice John Roberts off the Court before they are willing voluntarily to retire.
What does French think of that aspect of the proposal? He never mentions it. He says that term limits “should be conducted on the basis of seniority — with the most senior judges being replaced first.” Yes, the whole point is to start with Thomas, then Roberts, then Alito, before getting to Justices Sonia Sotomayor and Elena Kagan.
French claims, preposterously, that it’s “an open question as to whether Congress can impose term limits in the absence of a constitutional amendment.” It’s open only in the sense that nobody has tried, in 235 years, to break the Constitution’s express grant of life tenure. He echoes the fig leaf deployed by Whitehouse and other progressives to pretend that their proposal is consistent with the constitutional command of life tenure: saying that justices would not “be removed from the court, but . . . should instead be placed on senior status. Judges on senior status have much more limited dockets and would vote, at most, on only a tiny fraction of cases.”
Nothing like this has ever been attempted with the justices, and it runs smack into the constitutional language that being a justice is a distinct “Office.” The chief justice, in particular, has duties assigned by the Constitution itself, and the Constitution doesn’t envision multiple people holding that single office at once. Stripping the current holders of the historic powers of a judicial office created by the Constitution, against their will, would amount to depriving them of that office. There’s nothing to suggest that the Framers, in creating life tenure, ever considered that Article III’s text would permit the justices to be stripped of the powers of their office so long as they were appropriately pensioned.
Politics and the Judicial-Confirmation Wars
In explaining “why the court needs reform,” French presents a misleading and partisan account of the Court’s history. In French’s telling, we had a nonideological, bipartisan process guarded by the filibuster until 2017: There is now “an incentive for people who aspire to the judiciary to clearly and aggressively stake out their judicial philosophy,” whereas “the presence of the filibuster beginning in the mid-19th century and throughout the 20th century meant that presidents of both parties had to achieve at least some level of bipartisan support to confirm a judge” and “previous aspirants to judicial office often played their philosophical cards close to the vest.”
Where to begin? French complains that “the political branches have gamed the system” to attain their desired ends. That’s called politics. We don’t change the rules just because one side started winning. The selection of justices has, far more often than not, been an ideological tool deployed by the president. George Washington went out of his way to stock the original Court with men who shared his philosophy of the Constitution: Of his ten appointees, five had been delegates to the Constitutional Convention, and four others had been active promoters of ratification, including John Jay (a co-author of the Federalist Papers). Andrew Jackson, Abraham Lincoln, and Ulysses S. Grant all wanted justices who agreed with them on issues of executive power, civil rights, and monetary policy.
French complains that “the average term of a Supreme Court justice has been 16 years. Many modern justices, however, have served well over 25 years.” But how new is that? As our editorial on the Biden proposal observed, “sixteen justices appointed before 1865 served at least 20 years, and seven of them served at least 30. John Marshall, appointed by John Adams, served as chief justice for 34 years.” Adams thus effectively set the judicial agenda for decades on his way out the door after losing reelection.
Without rehashing all the nomination history I’ve detailed at length here, here, here, here, here, and here, it’s not true that justices were never rammed through the Senate on party lines before 2016, or that justices were never blocked by the opposing party before then (sometimes without a floor vote on their nomination). Even before 2016, there were six cases of justices confirmed with the votes of fewer than 60 percent of the Senate (including a three-vote margin in 1858 and a one-vote margin in 1881) and six cases of Supreme Court seats being held open by the Senate until after a presidential election. Recall the list of different procedural ways in which the Senate has blocked nominations:
It has always mattered whether the president’s party controlled the Senate. Elections are supposed to have consequences, and not just presidential elections. And that was fine so long as it benefited one side. Since when were the nominees of Democratic presidents forced to hide their cards or moderate to get confirmed? Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor had long track records as judges; Ginsburg and Thurgood Marshall had extensive records as legal activists; William O. Douglas and Felix Frankfurter had long paper trails; Hugo Black had been an outspoken senator; FDR picked several people out of his own Justice Department, and Harry Truman picked his old Senate cronies. The only Democratic choice for the Court in the past century who was any sort of moderate was Byron White, and White reflected the moderate politics of the president who picked him, rather than a concession to the Senate. Again, the underlying assumption here is that the system is supposed to restrain conservatives, and only conservatives.
French’s history of the Senate is tendentious. He tells us that “a dispute over filibuster abuse led Democrats to break the judicial filibuster for lower court nominees. Four years later, Republicans broke the filibuster for the Supreme Court.” Why is it only Republicans who “abuse” the filibuster? Democrats were the first to filibuster appellate-court nominees, in 2003. Democrats attempted party-line filibusters of Supreme Court nominees in 1971, 1986, and 2005. French blames Republicans for using “raw political power” to block Merrick Garland and confirm Amy Coney Barrett, but again, as I’ve detailed at length, both of these steps were in line with Senate precedents.
A More Modest Court
In fact, treating the two ideological sides as the same assumes that our discussion of constitutional jurisprudence doesn’t consider the Constitution. In reality, “both sides” are not equivalent. As Justice Antonin Scalia once said, “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?”
On balance, a conservative, originalist Court will leave more questions to the political process. French complains that the Court is “a branch of government that’s arguably become more potent than any other, which again violates the intent of the founders.” But what has largely occupied the Court’s current majority is peeling back judicially invented unwritten rights, enforcing explicit textual rights previously adopted by the people, and enforcing the separation of powers in order to preserve the role of the most representative branch while preventing the subjection of the president to creative interpretations of the law.
French frets that the current system will incentivize younger judges to eschew judicial philosophies such as originalism and become one-sided activists. We won’t get “nuanced, thoughtful opinions in hot-button culture war cases.” How is this not what we’ve had before from Democratic appointees? Since when has Sotomayor taken nuanced stances and broken with her ideological side? When, for that matter, did Thurgood Marshall? What was nuanced about Roe or Obergefell?
As a conservative, I don’t believe that long-standing rules, systems, and structures should be discarded without more serious reasons than “one side lost, and now it’s mad.” We’ve had the system of life-tenured justices for over two centuries. That system has always involved the politics of both the presidency and the Senate. The number of justices has been fixed for 155 years. And there are new and different problems with a term-limits system. But even if we might pick a different system if we were starting the world anew and wiping the law books clean of all the precedents created under the prior system, that’s not the world we live in, and it’s not the rules of the game under which we have lived all our lives and the lives of generations before us. The “malady of our moment” is not, contra French, justices who serve a long time. It’s people who like the rules only when they win.