Why do Americans let the Supreme Court run the country?

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David A. Kaplan, the legal affairs editor of Newsweek in the 1990s, is the author of The Most Dangerous Branch: Inside the Supreme Court in the Age of Trump. His other books include The Accidental President, about the 2000 presidential election and the perils of Bush v. Gore. He currently teaches journalism and law at New York University and the City University of New York.

Canadians must wonder what on earth those Americans are doing with their Supreme Court. Many of us Americans are thinking the same thing.

Now that President Donald Trump has nominated Amy Coney Barrett to the Supreme Court to replace Ruth Bader Ginsburg, both liberals and conservatives in the United States are predicting pretty much the same thing: the court will turn decisively to the right, and policy on abortion, health care, climate change, immigration, affirmative action and gun regulation will continue to be determined by judicial fiat. Most important, the court may achieve the central, but frequently overlooked, conservative goal of the modern era – “deconstructing the administrative state.” That means denying federal bureaucrats the vast regulatory authority they exercise over financial markets, the workplace, the internet and the environment.

How can a country that prides itself on the sovereignty of the people tolerate the existence of a court that exercises dominion over so much divisive policy? How can it be that a 250-year-old democratic republic has the most powerful court in the history of the world? Canada has nothing like it. Nor do Britain, France, Germany, New Zealand, Russia or North Korea. If the 48-year-old Ms. Barrett is confirmed, and serves until Justice Ginsburg’s age at her death, Ms. Barrett would be there until 2059. Does that really make any sense?

The U.S. Supreme Court is surely an odd legal duck. Its power is hardly spelled out in the Constitution. Instead, the court’s authority originated in a power grab. In an 1803 case called Marbury v. Madison, Chief Justice John Marshall ruled that “it is emphatically the province and the duty of the judicial department to say what the law is.” And thus was established the power of “judicial review,” which arrogated unto the court the ability to declare duly enacted laws unconstitutional – even though the text of the Constitution says no such thing. Ever after the justices have had the last word on the Constitution. Of course it need not be that way. In other countries, for example, courts only can direct legislatures to fix flaws in a law – judges in effect serve in an advisory capacity. Other countries, such as Canada, allow legislatures to overrule judicial decisions under some conditions. And in no other democracies do judges on a top court serve for life.

Marbury and countless cases since created an all-powerful Supreme Court. In recent decades, a feckless Congress – altogether thrilled to let the justices settle contentious issues, lest legislators have to do the dirty work themselves – has further enabled a juristocracy. Sometimes that turns out great, like when in 1954 the court in Brown v. Board of Education unanimously struck down segregation in public schools. Not so much in 2000, in Bush v. Gore, when the court intervened to decide a tied presidential election; or in 2008, in Heller, when the court invented an individual’s right to bear arms under the Second Amendment; or in 2010, in Citizens United, when the court opened a flood of big money into campaigns; or in 2013, in Shelby County, when the court eviscerated the Voting Rights Act of 1965. Or, so controversially, in Roe v. Wade in 1973, when the justices mostly removed abortion from the give-and-take of legislative debate and compromise. Some justices will tell you such cases were thrust on the court, but they’re being disingenuous. The docket of the court is discretionary – its members get to choose the 65 or so cases they hear each year, sending thousands of others back whence they came.

Because of the court’s supremacy, and the mythology of constitutional law that has grown up around it, presidents correctly view it as a political prize. Appointing the folks who’ll make the “correct” rulings – based not on the ideal of neutral legal principles, but on partisan policy preferences – became an obsession with the Trump administration. The President tweets of “his” court, as if its members were beholden to him. Secretary of education, attorney-general, ambassador to Bermuda, Supreme Court justice – they’re all the same!

The obsession has paid off. In the lower federal courts, and with Ms. Barrett’s nomination, conservatives seem to have a chokehold on constitutional doctrine that could last a generation or more. But with success comes potential backlash. A growing number of Democrats now support expanding the size of the Supreme Court, to make up for its conservative tilt – its opponents call it “packing the Court.” It’s also called “trampling on the Constitution,” by those – such as White House press secretary Kayleigh McEnany – who either haven’t read the Constitution or don’t care what it says. But it ought merely be called politics, just as Republicans insist that blockading president Barack Obama’s 2016 nomination of judge Merrick Garland to the court was the ordinary exercise of politics. Just as they now believe that ramming through Ms. Barrett’s nomination on the eve of a presidential election is.

In fact, the Constitution says nothing about the court’s size, and a simple bill – passed by Congress and signed by a president – can increase it. Though changing headcount hasn’t been done since 1869, it’s been done seven times in American history – from six to five to six to seven to nine to 10 to seven, and then to the current nine. Typically the changes were made for undisguised political calculation. In 1937, president Franklin D. Roosevelt proposed adding a seat for each justice over 70½ – the fogies kept invalidating New Deal legislation. The plan went nowhere, but it didn’t have to. Soon enough, justices died or left (and FDR eventually got to fill all but one of the seats). So the notion that nine is immutable is bunk. Just part of the constitutional give and take. You steal some court seats today, I steal some tomorrow. If Joe Biden wins the White House, and Democrats retake the Senate, a bigger court may not be far behind. While Mr. Biden’s been opposed to the idea in the past, circumstances have changed.

If Democrats did go through with expansion – say, by increasing the number of seats from nine to 13 – in theory they would undo its conservative cast. There would be a presumptive 7-to-6 liberal majority. Naturally, when the GOP get back into power, they would retaliate with two more seats, giving themselves an 8-to-7 majority. At some point, perhaps, both sides would figure out the ridiculousness of the enterprise and bilaterally disarm. They would see how bad it made both sides look – and how harmful such an arms race was for the court itself. If the justices are just a bunch pawns-in-robes, why have them in the first place?

Indeed. The ironic byproduct of expanding the Supreme Court – regardless of whether both sides came to their senses – also might be to show that the judicial emperors all too often have no clothes. More of us would come to recognize the court’s rulings as just politics by another name, the only difference being that it, and we, have pretended otherwise. If this is what court expansion accomplishes – in addition to gains in some liberal policies and at last demonstrating to Republicans that Democrats, too, can play hardball – that might do wonders for American democracy.

It is only when Americans come to realize that they need not be ruled by nine (or 13) unelected, unaccountable justices, residing in a marble temple, alone proclaiming the meaning of the Constitution. A fellow named Lincoln had it right 160 years ago. “If the policy of the government upon the vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court,” he said in his first inaugural address, “the people will have ceased to be their own rulers.”

Why do our popularly elected representatives – from Trump on down (or up, depending on your perspective) – view the selection of justices as the most essential part of their jobs? If we Americans should have learned anything from the past four years, it’s that our democracy isn’t working very well. But instead of continuing to see the justices of the court as our saviors, we ought to be focusing more on more democracy, better democracy. Yes, these days it’s the conservatives looking to the court for policy victories they can’t obtain elsewhere, but not so long ago it was the liberals – as much as the right to abortion, that’s the legacy of Roe v. Wade.

It is a sign of American weakness that we keep turning to the Supreme Court to resolve our hardest choices. We do not need, nor should we want, the court to save us from ourselves.

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