Recency Bias and the Supreme Court as a Broken Institution

By Eric Segall

Despite last week's confirmation of Judge Ketanji Brown Jackson to replace Justice Breyer on the Supreme Court, a moment worthy of celebration, there is still an ominous despair on the political left about what the six-three conservative majority on the Court will bring our way over the next few (or many) years. This dread is justified. The Court is on the road to decimating women's reproductive freedoms, enlarging gun rights, ending affirmative action, and cutting back the administrative state to assist big business and multi-national corporations. 

These likely results, in addition to Senator Mitch McConnell's norm-breaking manipulation of the confirmation process, led to President Biden's Supreme Court Reform Commission and have sparked hundreds of essays, blog posts, and articles lamenting the current Court and advocating numerous fixes, including packing the Court, stripping the Court of jurisdiction, and maybe even disobeying the Court. I am sympathetic to all of these reforms but not because the Court's politics are different than mine but because the Court has needed this reform for a long time. 

Liberals and progressives would be better off focusing on the history of the Court than current events to support their calls for reform. The reality is that the times we live in are not unusual when it comes to controversies surrounding the Court. Recency bias has played a large role in the thinking of Court watchers that we are in more difficult times than ever when it comes to the Justices' decisions. But the truth is that the Court has been broken for well over 150 years. The Court needs to be fixed not because it is too conservative or at times too liberal but because we should not allow unelected, life-tenured judges to play such a large role in our country's politics. And that problem is anything but new both in terms of degree and kind.

Perhaps the most controversial and despicable case in American history is Dred Scott v. Sandford decided in 1857. In this case, which years later Chief Justice Hughes called a "self-inflicted wound," the Court held that Black people were not and could not be citizens of the United States, and that Congress could not end slavery in the territories. This decision was enormously controversial even at the time. The South, of course, strongly approved of the decision. The North's reaction was quite different:

The North exploded in denunciations of Taney’s opinion. Several sober appraisals in the Northern press decimated the chief justice’s tortured legal reasoning. The Republican editor Horace Greely published Justice Curtis’s dissent as a pamphlet to be used in the elections of 1858 and 1860. The press and pulpit echoed with attacks on the decision that were as heated as Southern defenses of it. Taney’s hopes of settling the issue lay smashed. If anything, Scott v. Sandford inflamed passions and brought the Union even closer to dissolving.

Not only did the decision likely hasten the Civil War but it was so controversial that President Lincoln tried to limit its reach in a famous statement about judicial supremacy. Moreover, after the Court found that Blacks could not be citizens, which as a jurisdictional matter ended the case, the Justices went on to rule the federal statute unconstitutional even though it already found it lacked jurisdiction--something judges should never do. Over 160 years ago, the Court was already not acting like a real court.

During the Civil War, Congress for the first time made paper money or "greenbacks" legal tender for prior debts. The Constitution only speaks of coin. After the War ended, debtors wanted to pay back their creditors with these new greenbacks but the creditors wanted gold or silver. This debate was perhaps the most important economic issue of the time.

In 1869, the Court ruled that Congress could not make paper money legal tender for prior debts in a historic decision that altered both our economy and the rationale of the landmark decision, McCullouch v. Maryland. Just one year later, with two new Justices appointed by President Grant for the specific purpose of overturning the case, the Court reversed itself for no other reason than the presence of those two new Justices. These Legal Tender Cases, as they are now called, were the Roe v. Wade or Citizens United  decisions of their day.

After the second decision, conservative newspapers were appalled. One, The New York World, commented that the decision "provokes the indignant contempt of thinking men. It is generally regarded a base compliance with Executive instructions by creatures of the President placed upon the Bench to carry out his instructions." 

More than 150 years ago, the Court was so controversial that the Justices were labeled as "creatures of the President" by the media of the time.

During the the Court's disturbing Lochner era from 1900-1936, the Court struck down numerous state and federal laws dealing with minimum wages, child labor, overtime rules, worker safety, and union protections, This period ended with the Court overturning several important New Deal laws, leading to President Roosevelt's harsh criticism of the Justices and his court-packing proposal. In a national radio address, he famously said the following:                

In the last four years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy-making body.... The majority of the Court has been assuming the power to pass on the wisdom of these Acts of the Congress – and to approve or disapprove the public policy written into these laws.... We have, therefore, reached a point as a Nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution – not over it. In our Courts we want a government of laws and not of men.

These very public statements by a sitting President criticizing the Court were met with joy or sorrow, depending on one's politics at the tine. I cannot think of a President since FDR making such an explicit attack on the Court. These events occurred over 80 years ago.

Although neither President Nixon nor President Reagan used rhetoric as harsh as FDR's, both men exploited what they and much of the public thought were Warren Court excesses during their Presidential campaigns. Reagan used Roe v, Wade to bring evangelical Christians into the Republican Party where they remain today. Nixon's so-called "law and order" campaigns were conducted 50 years ago and Reagan's harsh critiques of the Court were over 40 years ago. These attacks from the right were every bit as controversial and important as the criticisms of the Court today from the left.

There's a lot more history to recount that could fill a book. There were "impeach Earl Warren" signs throughout the South after the Court handed down Brown v. Board of Education. Professor Corrina Lain has written about how the Court's early 1960 decisions banning organized, teacher-led school prayers "provoked more outrage, more congressional attempts to overturn [them], and more attacks on the Justices than perhaps any other decisions in Supreme Court history." And, in our times, Citizens United and its progeny, along with Shelby County v. Holder and Obergefell v. Hodges have polarized the public and caused enormous stress on our entire political system, including both state and national elections. And, of course, there's the infamous decision in Bush v. Gore in which the Court prematurely decided an election for President of the United States.

There is little doubt that the Court has issued many not controversial and good decisions over the years, especially in cases involving free speech and the rights of criminal defendants, who have few political allies supporting them. But overall, since 1857, the Court has in almost every era infected our politics with overreaching or ill-timed decisions that have inflamed and polarized our politics. Have the good cases come close to outweighing the bad ones? What would our country look like with a much weaker Supreme Court? These important questions are beyond the scope of this blog post. 

But what is important to remember is that these stormy times are not materially different than the chaos the Court has created throughout American history. Recency bias should not blind us to all that has come before us and the need, in this author's opinion, to take strong steps to substantially weaken the Supreme Court of the United States.