The Founding Fathers were not democrats; they wanted a mixed system with plenty of checks and balances, like the British system or the Roman Republic. Did they envision the kind of minority rule through the judiciary that McConnell clearly has in mind? And does the rest of American history provide any support for it?
It’s a complicated question. Here are my responses:
- There are four periods in which issues with the judiciary somewhat similar to the present one arose. The first was the attempt by Adams and the Federalists to pack the judiciary with sympathizers after the 1800 election; the second was the period around the turn of the 20th century when federal and state courts fairly routinely overturned popular state business regulations on the basis of substantive due process; the third was the 1930s wave of Supreme Court decisions invalidating New Deal legislation; and the fourth was the judicial imposition of desegregation measures from the middle of the 1950s to the early 1970s.
- History has obviously treated these episodes very differently. The Adams effort to pack the judiciary was pretty grubby, but its immediate result was Marbury v. Madison, and the longer term effect of federalism in the judiciary was the strengthening of the Union and the single market through the enforcement of the Commerce Clause. The substantive due process days are still viewed as an odious outlier, not to be repeated. The Supreme Court changed gears on the New Deal legislation not long after it was threatened with Roosevelt’s packing scheme. Finally, the Warren Court is viewed as a beacon of justice and sanity in the darkness of bigotry and segregation.
- Therefore, you cannot say that empowering the judiciary against a majority has always had positive or negative results. It depends on the era and the issues.
- The Founding Fathers did not believe in pure democracy, but there is no evidence to suggest that they would have thought that a scheme designed to systematically thwart the values of a majority through the judiciary was in any way workable. Checks and balances, yes; a permanent institutional roadblock, no.
- In any event, the Constitution has changed significantly since 1787; democracy is built into the system today in a way that the FFs never contemplated as the result of several bitter struggles throughout our history. As a result, what the FFs thought of the system is of less relevance than strict constructionists and originalists seem to think.
On balance, the problem with the McConnell project is not the empowering of right-wing judges so much as the unprincipled way in which it is being done. The new justice will be viewed as completely illegitimate by more than half of the public, including me. That is not a recipe for stable and popular government. It could very well lead to instability and dramatic changes to the fundamentals of our system in the foreseeable future. McConnell clearly believes that left-leaning millennials will just suck it up and learn to live with his roadblock. I, for one, am not so sure.