There is no American tradition of minority factions using the Supreme Court to stop popular national majorities from governing
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I’ve seen people claiming more than once that Republicans lived with the Warren Court without manipulating the size of the courts so Democrats should be willing to as well. This is obviously silly:
There were only two brief periods during the Warren Court when Republicans had (very slim) Congressional majorities and it was during moderate Eisenhower's Presidency. GOP never had a trifecta again until 2002 when decades of GOP appointments had already tilted court right https://t.co/cfE9nNFBFJ pic.twitter.com/AlWzBSEvvx— Michael Tae Sweeney (@mtsw) October 8, 2020
And the argument is even worse than this suggests — as Mark Graber once wrote, a whole generation of scholars has written about the “countermajoriatrian” Court as if Barry Goldwater won a landslide in 1964. The Warren Court of the 50s didn’t have a liberal median vote. It wasn’t until Frankfurter retired in 1962 that the WARREN COURT was born, and for reasons we’ll return to in a subsequent post but reflect a sandwich of constitutional hardball that has given Republicans a 50-year-and-counting chokehold on the Supreme Court it was over by 1970. The liberal version of the Warren Court always represented a clear national governing coalition. Republicans didn’t pack the court because they never needed to; they got control of the Court 24 years before they got control of the House. It should also be noted that the idea that Republicans have some principled commitment to a 9-person Court that would transcend their control of the Court is laughable. Indeed, had James Comey been able to keep his sanctimonious yap shut we would most likely have a seven member Court right now, and constitutionally there’s no meaningful difference between changing the size of the Court by adding seats and serially refusing to confirm a president’s nominees.
At any rate, the idea that the practice of judicial review in the United States requires national governing coalitions to accept an entrenched minority faction in the federal judiciary refusing to let them govern is ahistorical nonsense. There have been three periods in which there were major clashes between a governing coalition and the Supreme Court, and every time the Court backed down. The early Marshall Court backed down because Jefferson (appropriately) rained bloody hell on the federal judiciary that had been packed by a lame duck administration. The Hughes Court backed down in 1937 in part because FDR threatened to (and had they continued to strike down New Deal legislation the Court absolutely would have been expanded; indeed, it may well have happened anyway had the Senate Majority Leader not suddenly died of a heart attack.) And the Civil War/Reconstruction Congresses were somewhere in between with respect to the Taney and Chase Courts, using a combination of size manipulation, jurisdiction-stripping, and outright nullification to make clear that he federal courts should not prevent popular majorities from governing.
Judicial review in its strong current form became entrenched in the United States because the Supreme Court has generally acted as a coalition partner, not an adversary, of the national majority of the day. The idea that Democrats should just sit idly by and allow a party that will have lost the popular vote in 7 of the late 8 presidential elections by this time next month to continue to set national policy from the judiciary is frankly absurd. And when the party that has effectively read Section 2 out of the 15th Amendment to render the most important civil rights statute if the last century a dead letter, the only possible response to “but muh civic compact!” arguments from them is Charles Black’s. How long must we keep a straight face?