Alexander Hamilton’s famous description of the US Supreme Court in Federalist 78 as the “least dangerous branch” was proven wrong soon after it was written. In 1803, the court claimed the power to strike down laws without any constitutional authority in Marbury v. Madison—a constitutional ruling concerning outgoing President John Adams and incoming President Thomas Jefferson.
Further notable moments in the Supreme Court’s history include the 1857 decision in Dred Scott v. Sanford, which declared the Missouri Compromise unconstitutional, upheld slavery in US territories, and held Black people weren’t citizens, helping ignite the Civil War.
In the era following its 1905 decision in Lochner v. New York, the court claimed for itself an extraordinary power to police the other branches and state governments, denying their ability to adopt key economic and social policies. Only President Franklin Roosevelt’s later threat to add seats to the court and dilute the power of sitting justices ended its anti-democratic grip on government.
The court backed down when Roosevelt proposed adding justices. At that point, some justices switched sides on key cases and others quickly retired. This backdrop is ever more pertinent today as we enter a new Lochner era, characterized by a Supreme Court determined to thwart the will of the people and longstanding constitutional doctrines, particularly in areas relating to fundamental rights and government regulation.
President Joe Biden and Vice President Kamala Harris have proposed some necessary and overdue reforms, including ethics rules for the members of the Supreme Court and term limits. However, term limits and ethics reforms, although necessary, don’t go far enough. Many scholars and practitioners, including members of the Biden administration’s Presidential Commission on the Supreme Court of the United States, have evaluated term limits, jurisdiction restrictions, supermajority rules for voting in constitutional cases, and ethics reforms, as well as court expansion.
Since former President Donald Trump’s appointment of three far-right justices created a 6-3 majority for Republicans, the court has made significant decisions that upend established constitutional law. It has overturned abortion and voting laws, denied states and localities the ability to regulate guns, and ended affirmative action in university admissions. More recently, the court overturned a 40-year precedent under which courts deferred to the expertise of administrative agencies when statutes are ambiguous.
Furthermore, the court has altered the understanding of the separation of church and state. The court has allowed public school funding to go to private sectarian schools, permitted Christian prayer at school sporting events, and overridden states’ antidiscrimination laws that allegedly interfered with “religious liberty.” The court has been consistent in allowing religious views to override generally applicable laws.
Roosevelt recognized the threat to democracy posed by a court that considered itself superior to other branches and was captured by an extremist ideology. He urged Congress to increase the court’s size to dilute the power of the current justices. The number of justices is not fixed in the Constitution, allowing Congress to adjust its size as necessary.
Currently, the Roberts Court has thwarted efforts to fight climate change, ensure a strong economy, and protect civil rights and liberties. More dangerously, its decisions undermine democracy itself through its rulings on election law and presidential immunity. Without court expansion, the Roberts Court will face no constraints in its approach.
Term limits and ethics reforms, although they have widespread support, will not address the current crisis. The necessity for court expansion prevails to ensure the Supreme Court does not continue its assault on democracy and critical rights. Additional details and perspectives on this topic can be found in the original Bloomberg Law article.
Caroline Fredrickson, a senior fellow at New York University School of Law’s Brennan Center for Justice, contributed to this discussion.