The Supreme Court reversed a long-standing precedent in a landmark case when a U.S. senator denounced the decision and the court. The senator quickly declared, “We will not stand by nor obey this legislative decision.” This was not Sen. Elizabeth Warren of Massachusetts ranting about the reversal of Roe v. Wade or any number of her colleagues reacting to the court’s expansion of Second Amendment rights.
It was Mississippi’s rabidly segregationist Democrat James O. Eastland’s outraged reaction to the unanimous 1954 Supreme Court decision in Brown v. The Board of Education reversing an earlier ruling allowing “separate but equal” treatment of the races in public education. Eastland’s interpretation of the constitution mirrored the way progressives view recent court decisions. Eastland claimed the Supreme Court was dominated by purely political justices who could no longer be considered legitimate.
The next decade was known for “massive resistance” and included dozens of schemes to circumvent the integration of the schools and attacks on the court and Chief Justice Earl Warren. There was a national campaign to “Impeach Earl Warren,” whom they saw as the devil incarnate and proposals to restrict the jurisdiction of the court.
Attacks of an earlier era seem tame compared to what progressives propose today. Today’s proposals to circumvent the consequences of recent court decisions, to bring the court to heel by packing it or to persuade the public that the court is illegitimate or racist institution are far more radical than opponents of the Warren court threatened. The segregationist backlash to Brown failed. Anyone with an appreciation of the genius of the separation of powers, who values the rule of law and who recognizes the stability of the American constitutional republic should hope that the current attempts to delegitimize the court will meet a similar fate.
Politicians and activists never like to lose at the polls, in Congress or in the courts. In 1832, then-President Andrew Jackson fulminated at a Supreme Court decision with which he disagreed and famously declared “John Marshall has made his decision now let him enforce it.” Former President Franklin D. Roosevelt, furious at court decisions striking down several of his “New Deal” programs, denounced justices he particularly disliked and after winning a second term in 1936 proposed “packing” the court by adding justices. Roosevelt wanted a safe majority that would not worry too much about the actual requirements of the Constitution. The proposal was seen for what it was and was rejected even by his fellow Democrats.
Democrats today believe they are in a stronger position to succeed and seem dedicated to destroying both public trust in the court and in either packing it or abolishing it as it has existed since the early days of the republic. The progressive wing of their party with media support has been unrelenting in attacking the court as an institution and individual justices like Associate Justices Clarence Thomas and Samuel A. Alito Jr., whose views on the meaning of the Constitution differ from theirs. They are dead serious.
These attacks have had a real impact. Earlier this year, a Pew Research poll revealed that mainly because of shifts in the way Democrats and particularly liberal Democrats view the court, its public approval is lower than it has been in at least four decades. Americans still have a favorable view 54% to 44% of the court, but in the last three years, approval of the court has dropped a full 15% with a majority of Democrats now viewing it unfavorably.
A July Rasmussen poll found that almost 40% of Democrats believe the United Nations should have the power to overrule a United States Supreme Court ruling while 56% and 67% of Democrats see the court as fundamentally racist and sexist, respectively. While President Biden holds back on specifically endorsing court packing, his attorney general attacks the recent court decision reversing Roe v. Wade and pledges ways around it. There can be little doubt that once the midterm election is behind them, Democrats will propose “reforming” the court to prevent future decisions with which they disagree.
Among the most radical proposals is one to literally abolish the current court and turn its duties over to a directly elected national tribunal. According to Rasmussen, that proposal has the support of 53% of Democrats. Make no mistake, any “reform” that would threaten the independence of the court, let alone abolish it or make its decisions reviewable by the United Nations poses an existential threat to the continued viability of the American republic as envisioned by the founders.
• David Keene is editor-at-large at The Washington Times.
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