ICYMI: Court watchers credit Court reform push in explaining progressive victories at the Court this term

07.17.20

While this Supreme Court term ended with many decisions that were better than the worst-case scenario for progressives, any analysis of what drove this term must include the fact that the movement to reform the Supreme Court has grown dramatically this year. Keenly aware of the public’s reduced confidence in the Court’s legitimacy, Chief Justice John Roberts occasionally broke with his Republican-appointed colleagues to try to postpone any political reckoning for the Court in the middle of an election year

While these decisions may have provided a temporary relief, Roberts very much preserved his ability to deliver big, conservative victories down the line. Roberts is playing a long game, and it’s a game progressives stand to ultimately lose, absent structural reform that restores balance and independence to the Court.

For now, Court watchers on the left and the right agree that progressives’ increased activism is already having an impact and that the looming possibility of Court reform likely shaped Roberts’ response to the term:

  • Roosevelt University Political Science Professor David Faris: “[M]any of the Court’s recent decisions … are best viewed as the ongoing machinations of Chief Justice John Roberts to preserve the Court’s waning legitimacy and to steer clear of the looming threat of court-packing under a Biden presidency.”
  • Harvard Law School Professor Michael Klarman: “The chief justice knows many Democrats are aching for a fight with the court and he is determined to give them less ammunition to fight with.”
  • Washington Post columnist and Ethics and Public Policy Center Senior Fellow Henry Olsen: “Roberts would have to be living in a cave not to see that court packing could happen soon. Hence, perhaps, his recent votes.”
  • Committee for Justice President Curt Levey: “Recent threats from leading Democrats to pack or otherwise restructure the court he heads may also weigh on Roberts.”
  • Slate’s Dahlia Lithwick and Mark Joseph Stern: “[Roberts] knows Democrats remain traumatized over Merrick Garland’s stymied appointment and Justice Brett Kavanaugh’s toxic confirmation. During the Democratic primary, multiple top-tier candidates pronounced themselves open to adding seats to the Supreme Court to counter Republicans’ judicial chicanery. Roberts also knows that a term filled with one conservative triumph after another would only have given Democrats ammunition to run against the court, framing it as a partisan institution in need of reform.”
  • George Washington University Professor and President & CEO of the National Constitution Center Jeffrey Rosen: “All of the justices are clearly aware of the attacks on the legitimacy of the courts in general and the Supreme Court in particular—from Trump assailing ‘Obama judges’ to frustrated progressives threatening court packing.”
  • University of Michigan Law Professor Leah Litman: “The court’s role as an institution in American government has come under increased pressure. If it looks very political and partisan, it might not be long for this world in its current form.”
  • The New York Times’ Adam Liptak: “Chief Justice Roberts has spoken admiringly of Chief Justice Hughes and his deft management of a clash with President Franklin D. Roosevelt. It arose in 1937, when Roosevelt, unhappy with Supreme Court decisions striking down his New Deal programs, announced a plan to add justices to the court.”
  • The Washington Posts’ Robert Barnes: “[L]iberal groups are pressing to expand the number of justices. The court’s five Republican-appointed conservatives and four liberals picked by Democratic presidents may have looked for chances to cross lines and display their independence.”
  • Take Back The Court Director and San Francisco State Professor Aaron Belkin: “The threat of court reform seems to have influenced Roberts’ decisions to reject Trump’s racist repeal of protections for Dreamers, Louisiana’s unconstitutional attempt to dismantle abortion rights, and legalized workplace discrimination against LGBTQ Americans.”