Among the many issues on the liberal wish list that cannot be achieved through democratic means, one in particular motivated the opposition to Kavanaugh: abortion. It loomed over the entire confirmation process—from the nationwide speaking tour “Rise up for Roe” to the laser-like focus on the two Republican senators who support abortion rights, Collins and Murkowski. Planned Parenthood and NARAL were there every step of the way, financing protesters, TV ads, and celebrity appearances.
The nation’s abortion regime is dependent on the Supreme Court’s decision creating a federal constitutional right to abortion. Without that intervention, it is almost certain that a nationalized abortion law would never have been achieved through the democratic process, whether through a constitutional amendment, legislation in each of the fifty states, or a federal law mandating abortion on demand. Accordingly, a vocal, lavishly funded segment of the left has staked everything on upholding Roe v Wade. It is a cause of such overriding importance that no means of sustaining it, not even the idea of tearing down an honorable man with scurrilous and unverified stories, can be ruled out.
Ironically, Roe stands as a key example of the serious damage done to the country when courts stray from the rights actually protected in the Constitution. Justice Ginsburg, herself an avid defender of the right to abortion, was nonetheless critical of Roe not because it amounted to legislating from the bench, which she acknowledged, but because it moved too quickly. From her perspective, the decision to “ste[p] boldly in front of the political process” was wrong not in itself but as a prudential matter because it “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”40
It may be that slow-motion legislation from the bench would have provoked less opposition than the one-fell-swoop decision of Roe v Wade did. But people’s bristling at having major issues removed from public debate by unelected judges is evidence of an instinctive American recognition that such activism runs counter to the rule of law. After all, if the people have no recourse from judicial alteration of our laws and Constitution, what remains of our representative system of government?
Another problem with constitutionalizing important issues is that it undermines the federalist structure of the Constitution and the American nation. The framers established a federal government with limited powers on the foundation of preexisting sovereign states. While the Constitution does federalize certain rights, expanding their number and scope without popular consent turns our federal structure into an all-or-nothing system, which raises the stakes for every decision. If abortion were still governed by the states, there would likely be a range of laws throughout the country. There would be room for the experimentation and balancing that the Supreme Court foreclosed. People could vote with their feet. Each legislative or legal battle over abortion would be geographically limited. While such a system slows down change in either direction, it also puts it much closer to the people themselves and the fundamentally American ideal of self-governance.
Whatever happens to Roe, there is good reason to believe that a conservative majority on the high court would roll back at least some of the liberal excesses of the past few decades and, at the very least, prevent an activist federal judiciary from imposing new liberal policies on America by fiat. After Kavanaugh, the brightest lights in the Democratic Party are not hiding their desire to regain control of the Supreme Court by any means necessary, and “packing” the Court has become a serious topic of discussion on the left.
Attempts at court-packing are simply history repeating itself. While the number of justices on the Supreme Court varied in the early years of the republic, it has been fixed at nine since the Judiciary Act of 1869. “Court-packing” entered the political lexicon in 1937 when President Franklin Roosevelt, frustrated by a Supreme Court that had declared key components of his New Deal unconstitutional, proposed the Judicial Procedures Reform Bill, which would have allowed him to appoint as many as six additional justices. Even a president as popular as FDR could not get away with such a naked power grab, and he failed to get the bill through a Congress controlled by his own party.
The historical consensus is that Roosevelt’s court-packing plan ultimately gave him the Court he wanted, albeit indirectly. Congress passed a watered-down version of Roosevelt’s bill, which left the Court at nine seats but allowed justices who retired to receive full, rather than one-half, pensions.41 Four justices stepped down within the next four years, and two more died in the same period, giving FDR his opportunity to remake the Court.
But the most memorable development on the Court was the sudden change in Justice Owen Roberts’s voting. Roberts underwent a conversion of sorts in his constitutional views and began voting to uphold Roosevelt’s agenda in what has been dubbed the famous “switch in time that saved nine,” on the assumption that his vote changes were made because he was attempting to head off the president’s changes to the composition of the court. (Although that conventional wisdom has since been called into question.)42
A justice who allows the president’s political maneuverings to change his vote does not show his independence. He shows that justices can be manipulated. Democrats who are agitating for a change on the Court now may be making the same calculation, hoping that some justices may still be susceptible to outside pressure. It seems clear that increasing the size of the Court would not only shift it dramatically and immediately to the left but would trigger retaliation that would make the Court more a political football than it already is. By holding the Court hostage, left-wing activists hope to convince at least one justice to move to the left, obviating the need for drastic action.
Unfortunately, this tactic has worked at least once before with this Court. In 2012, when a constitutional challenge to the Affordable Care Act, President Obama’s signature legislative accomplishment, was before the Court, the initial vote of the justices was to strike down the entire law because its requirement that all Americans purchase health insurance, on penalty of a fine—the so-called “individual mandate”—violated the Commerce Clause. But Chief Justice Roberts was uneasy with the prospect of the Court’s making such a major change to the health care law and feared it would be blamed for the likely fallout in the insurance markets. The media, senators, and even the president were also previewing arguments they would use if he voted to overturn the law, calling it partisan and activist and a blow to the Court as an institution.
Behind the scenes, the chief justice negotiated a deal with Justices Kagan and Breyer. They would vote to overturn the law’s expansion of Medicaid, contrary to their own reading of the statute, in exchange for his upholding the individual mandate as a tax.43 Both inside and outside the Court, the assumption was that he had buckled under the pressure.
Whatever Chief Justice Roberts’s reasons, the result was not an improvement in the Court’s reputation. Pew reported that after the decision the Court remained at its all-time-low 52 percent approval rating. The accepted narrative, even among those who welcomed the chief’s decision, was that he changed his legal position not on principle but in response to public pressure. The right lost respect for him, and the decision won him no friends on the left, which still portrays him as unforgivably conservative and a craven political operative.44 It was a regrettable outcome for anyone concerned about the legitimacy of the Court. Some of the people responsible for putting Kavanaugh on the Court hoped that if he were tempted to modify his position in hope of adulation, he would know it leads to scorn.