How to Fix the Worst Type of Supreme Court Opinion

In the final episode of “By the People,” our summer series on popular constitutionalism, Amicusco-hosts Dahlia Lithwick and Mark Joseph Stern spoke with New York Timescolumnist Jamelle Bouie about how politics are essential to escaping our current Supreme Court–caused constitutional mess. Ultimately, they conclude, finding a new constitutional meaning that actually embraces the public’s true understanding of the document requires returning to our old understanding. The following excerpt of their conversation has been edited and condensed for clarity.

Mark Joseph Stern: As a serious student of American history, do you have a theory for why Americans, in the course of our lifetimes, came to believe that these nine unelected judges have the final and irrevocable say on what the Constitution means? Do you have a theory for why this public passivity is so ingrained?

Jamelle Bouie: I think it’s entirely historically contingent. It’s very recent, and I would tie it to a handful of things. The first is that you had the Warren court emerge in the middle of the 20^th century as a court that was trying to use judicial power to expand rights, protect the rights of minorities, expand procedural rights, all sorts of things.

You had, at the same time, a liberal elite, both in the academy and in politics, that was super nervous about the ability to politically defend these things, and so looked to the Warren court to do this, and then became extremely solicitous of judicial power when it seemed like the political tide was turning, right?

I think you also have, as this is all happening, a kind of professionalization of the Supreme Court. It’s interesting to look back prior to 1960, 1950, and just see the professions and the things that justices did prior to being on the court. And a lot of times they had very little actual experience on a federal bench. A lot of times they were practicing lawyers, but mainly politicians. Penn State historian Rachel Shelden has a great book coming out about this quite soon. In the 19^th century, it was understood that this was a political body, these were political actors, and they had political experience, and that continued into the 20^th century.

Earl Warren, to start, was governor of California, and that kind of political experience wasn’t uncommon. In the last 50 or 60 years, the court has become much more professional. The justices either were long-serving members of the federal bench or are put on the federal bench prior to being elevated to the court to give them that experience. They all come from a handful of elite law schools. Their careers are in the law. Their professional lives, their personal lives are all tied up in elite law. What that professionalization does is create the impression that the court is this nonpolitical body of people whose job is to point their big brains at constitutional questions.

Dahlia Lithwick: It’s interesting because you are echoing this theme that professor Larry Kramer—who coined the term popular constitutionalism—raised: This doesn’t actually become a problem until the political right and the political left agree that the court is divine, and that can only happen after the Warren court revolution.

There just didn’t used to be 300-page opinions. Decisions were seven pages, and Brown v. Board could be printed on the front page of a newspaper. The idea that this has to be weighted down with law-review articles and footnotes and arcana about the history of a three-part test is a way of obfuscating, right? Making it seem as though there is no way that the former governor of California could do this because not even the smartest professor at Yale Law School can do this. In that sense, the court works hand in glove with the American people to create this mythology of the oracular balls-and-strikes court.

If we’re on the same page about the role of the high court, can we agree that the answer to the question of who actually owns the Constitution, the one we started with, has to be: the people themselves?

Jamelle Bouie: The Constitution belongs to the people themselves. To your point about the length of opinions, I want to add the shrinking number of opinions, right? They decide fewer and fewer cases every year. People may look at that and see it as sort of a technocratic or procedural thing.

I think one should see it as a political thing as well, right? In the 19^th century and the early 20^th century, when the court has much less control over its docket—but is deciding hundreds of cases with these short opinions—they’re doing it in part because those earlier courts did feel the need to be more responsive to what was happening in the world at large, right?

They couldn’t just sit on stuff, because they were part of an active political process. Dropping 100-page opinions four or five months after the case is heard on cases that are of immense public importance is both a way to create the impression, again, that they’re these legal gurus, but also another way of separating the court from the public.

Mark Joseph Stern: One really recent and great example of the truth that a longer opinion is not necessarily a better opinion comes in the birthright citizenship case and the set of decisions from that. Clarence Thomas’ dissent is more than three times as long as the majority opinion and it’s also way more than three times worse. Clarence Thomas is just sort of randomly cherry-picking these arcane figures who wrote in their diaries or said in speeches offhandedly that they thought that birthright citizenship didn’t apply to temporary visitors, and then stitching it all together and declaring it to be this grand constitutional theory.

If you aren’t trained in the law, frankly, if you don’t have, like, that sort of BS radar, you might read that and find it persuasive and be like, “Well, all these thinkers that Clarence Thomas plucked out from a Control + F search in Westlaw had this mistaken view of the citizenship clause, maybe it’s right after all.”

And I really think that length and density is coming to be a substitute for genuine accuracy and persuasiveness in Supreme Court opinions, and Thomas is often the worst offender with these bloated pseudo-originalist opinions that are just a kind of random dance through history where he only picks the dance partners that happen to agree with him.

We spoke to David Gans back in June about the Black conventions that were so fundamental to the ultimate framing of the Reconstruction Amendments. We talked about In re Turner pushing back against racialized apprenticeship laws to expand the 13^th Amendment and inform the 14^th Amendment. More recently, the fight for marriage equality in Obergefell and even gun rights in Heller. These are all examples of the active participation of the American people in deciding constitutional meaning.

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What do you hope people who are today feeling trapped and powerless in this political moment take from those and other historical examples?

Jamelle Bouie: I would bring up some other examples, too. The political response to Dred Scott, which was both the early Republican Party, Lincoln in particular, saying: Listen, we will respect this as a decision between the parties involved, but we reject the idea that this can have any binding say on the meaning of the Constitution.

And then also, there’s press from Republicans at the time to pass legislation repudiating Dred Scott and just to do things that might limit the ability of the court to act. So later in the 1860s, you have efforts to say, “Oh, the court can only overturn laws of Congress with a supermajority.” This is a thing that begins making its way through Congress and eventually fails.

The Dred Scott example is instructive because I think the first step for ordinary Americans is just to recognize that, yes, Congress exercises political control over the court. Congress can structure the court. Congress can do all kinds of things to discipline the court if it wants to. In fact, much of what we recognize as the modern court is a construction of Congress. Its control over its docket, the building it sits in, all these things.

During primary season, you should be asking the people running the Democratic primary, “What are your thoughts on all of this?” These are questions at town halls, at events, as you call representatives. “What do you think should be done about the court? Would you support these sorts of things?” And kind of making it a concern. In the same way that the reason why you’re seeing larger numbers of elected officials talk about regulating data centers is because they are reading the public temperature. They are seeing people get angry about them face-to-face. Getting angry about the court in a face-to-face environment with lawmakers and getting angry about the court’s lack of accountability in its antidemocratic orientation is the kind of thing that’ll get lawmakers to at least start thinking about the fact that, yes, we can regulate this court.

I do think one of the ways we’ve gotten to this point is the inactivity of Congress, and part of the story here is Congress’ deference to both the judiciary and the executive. And I do think a more active Congress is something that—even without restructuring the Supreme Court—can push back on the court’s claim on the Constitution.

Dahlia Lithwick: I was really taken by something I heard you say about Charles Sumner, who represented Massachusetts in the Senate from 1851 to 1874. Sumner was a radical Republican on the vanguard of the anti-slavery movement, and as an abolitionist, he was fighting to rewrite the Constitution using Frederick Douglass’ language.

The Constitution is a “liberty document,” and he was responding to a view of the Constitution that saw it as written by powerful men to embody a theory of power and mastery. I found myself listening to you and wondering whether in this era, in which law is so often deployed in this key of mastery and this key of power, whether the language of liberty borrowed from Sumner and Douglass might actually be a useful circuit breaker.

Jamelle Bouie: I think part of getting there is breaking oneself of the notion that the Constitution is primarily a legal document, that the Constitution is primarily something for which, if you make a claim about it, the proper response is to sort of search through the case law and answer.

People have to get more comfortable with asserting things that they believe to be true about the Constitution, right? To use the unitary executive as an example, it’s all legal theory. It’s all kind of dreamed up by executive branch lawyers, and they have tried to look for places where they can say that this is the case. And it’s important to do research and to kind of tackle the stuff on its own terms. But in terms of politics, I think it’s important to just be able to say, “Yeah, that sounds stupid.” That the Constitution that we have is clearly a document meant to instantiate self-government. And if the Constitution allows for a situation where the president can act as a de facto dictator, then that is just wrong on its face, right?

But I think in the political realm, no one’s comfortable with it anymore. No one’s comfortable with, at least on the political left, just saying, “This is what we believe the ethos of the Constitution to be. We believe it to be a document that is trying to instantiate a more egalitarian society, that’s trying to instantiate a freer society, one in which people can govern themselves with a full suite of rights.” It’s important to be able to talk in that way and bring the debate actually away from arcane interpretation and back towards: So what are we even doing in the first place here?

Mark Joseph Stern: In your column at the end of this most recent term, you distinguished between the Supreme Court’s power to say what the law is after Marbury v. Madison, and you say that’s limited to cases or controversies as Article 3 of the Constitution explains.

Constitutional meaning, which you write, is as much the purview of the public as it is the job of a jurist. Can you walk me through the ways, though, that the people and not the courts do the latter work of making constitutional meaning, up to and including today?

Jamelle Bouie: It’s saying: “Our Constitution protects these rights. The Constitution may not mention those rights, but those rights are there, and we understand ourselves to have them.” You mentioned the Black conventions earlier. I mean, that is all over the language of those convention notes, if you just read through them.

What you see in all of those are claims about rights that Black Americans have that maybe you cannot find in the text, but they are asserting by virtue of being born in the United States, by virtue of their connection to the country itself, right?

That they live there, they work there, that’s where their identity is. We don’t really use the language of natural rights anymore, but by virtue of their natural rights, all these things are saying, “These are the rights we have. We have the right to move freely. We have the right to own property. We have the right to engage in economic life as we see fit. We have the right to vote. We have the right to have our civil rights protected.” And although this isn’t written in the text of an amendment, it’s clear that these rights are inherent to being an American, and we have them. I think part of creating constitutional meaning is just this act of assertion—political assertion.

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