aTypical Joe: a gay New Yorker living in the rural South

Tuesday, July 31, 2007

How to deal with conservative courts

Cass Sunstein says that we’ve hardly noticed a stunningly successful conservative refashioning of the Supreme Court that has radically changed the terms of our legal and political discourse:

According to conventional wisdom, the Supreme Court is equally divided between a conservative wing and a liberal one, with Justice Anthony Kennedy acting as the swing voter. But there is something extremely strange about this view of the current situation. By the standards of the recent past, the liberal wing isn’t liberal at all.

According to conventional wisdom, the Court has long been evenly balanced between left and right, and it has finally shifted a bit to the right under Chief Justice John Roberts. But there is something strange about this view as well. The Court shifted quite dramatically to the right between 1972 and 2000, indeed between 1980 and 2000, and yet people continued to speak of an alleged “balance” even as the dramatic shift was underway.

He goes on to detail “how much has happened, and how little we have understood it.” In a Times OpEd on Friday, Jean Edward Smith sees a way back to the center:

[T]here is nothing sacrosanct about having nine justices on the Supreme Court. Roosevelt’s 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike.

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

My problem is that the Supreme Court is not the only court where this conservative shift has taken place. The same shift has taken place throughout all levels of the judiciary. The Supreme Court hears so few cases that a change there won’t solve the problem.

I am thinking that liberals will need to abandon their faith in the courts and build legally binding, alternative institutions - based on mediation and rooted in social norms - that resolve issues before they ever even get to the courts.