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Be Prepared For Anything


I have a piece in the New Republic about the very real potential for a constitutional crisis centered around the Supreme Court and its implications:

Why has judicial power paradoxically thrived given the weapons that Congress can theoretically use to cut it down to size? Quite simply, because political elites generally favor it. This shouldn’t be all that surprising. Supreme Court justices, after all, are nominated by presidents and confirmed by Senate majorities, and despite the myth of the courts as a “counter-majoritarian institution,” the Supreme Court is rarely far outside the political mainstream. In some cases, like the conservative courts of the Gilded Age or the Warren Court at the height of liberalism under LBJ, the courts are active partners of a dominant national governing coalition.

Since early in the Nixon administration, the median vote on Court has been a moderate Republican, such as Lewis Powell, Sandra Day O’Connor, and now Anthony Kennedy. These courts have generally been conservative, but deliver enough victories to both sides to maintain elite and popular support for the institution. Indeed, in part because liberal victories under the Roberts Court have been fewer but tend to be higher-profile (most notably on same-sex marriage, abortion rights, and two cases involving the Affordable Care Act), the Court is actually more popular among liberals than conservatives.

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