Is Supreme Court in need of adjustment?

The U.S. Constitution does not specify which of the three branches of government should have the last word on how that document is to be interpreted. Chief Justice John Marshall staked out the Supreme Court’s claim to that prerogative early on.

But there is inevitable disagreement on constitutional interpretation among the justices. Whether interpretation of the 18th-century document must be rooted in the 18th-century meaning of its words, or whether it speaks to the present time, often divides them. Outcomes change over time. And there is nothing to support the view that any particular constitutional decision is sacrosanct.

When court majorities overreach popular opinion, various types of retribution may await them. For example, with the dreadful Dred Scott decision, the court lost prestige, Lincoln disregarded its views, and of course, its holding was resoundingly repealed by the 13th and 14th Amendments, though at enormous cost of life and treasure.

Again, when the court invalidated much of the New Deal, President Franklin Roosevelt’s thumping reelection in 1936 and his threat to “pack the court” resulted in a dramatic reversal of the court’s direction and ultimate approval of such key legislation as the National Labor Relations Act and the Social Security Act. Clearly, justices do read the newspapers and do follow the election returns.

When the court’s decisions fall outside the political mainstream, one can expect protests, votes for presidential and congressional candidates that promise reform, congressional legislation where appropriate and even constitutional amendments. Current polling suggests the court’s recent decisions on gun control, voting rights, election finance, environmental protection, police immunity and other issues are viewed with increasing disfavor by the public.

The unsurprising conclusion drawn from over two centuries of Supreme Court history is that a justice’s written opinions on the court, with rare exceptions, will consistently reflect the point of view he or she had embraced before being appointed to the court. The voting public understands that Supreme Court decisions depend more upon the preexisting views of Supreme Court justices than upon the effectiveness of litigants’ briefs and oral advocacy, and that the appointment of a justice with a known point of view will pre-configure court decisions for years to come.

When Judge Amy Coney Barrett is confirmed by the Senate, expected to take place prior to the Nov. 3 election, it will be reasonable to assume the eventual overturning of many key court precedents, most certainly Roe v. Wade, but including a laundry list of other precedents that conservatives had been unable to address legislatively and the court, up to now, has not had the votes to change judicially. Her appointment will accelerate the movement of the court away from mainstream American positions, unless action is taken to prevent it.

The confirmation of Barrett likely will energize both left and right and boost turnout for the Nov. 3 elections. If the Democrats elect Joe Biden as president and secure a Senate majority, this must be seen as a mandate to halt the rightward lurch of the Supreme Court.

Can the Congress, through legislation, increase the number of justices on the Supreme Court? Yes, it has been done before. May it also prescribe that a Supreme Court justice must step down to an inferior court after a fixed term of years? There is little dispute that it can do so. If Barrett is confirmed, and if the Democrats sweep the Nov. 3 election, Congress must step forward with appropriate legislation to expand the court and impose term limits.