3 November 2020

Scott W Stern responds to various proposals for reform of the US Supreme Court: “[N]o matter the fix, the courts will always be political — law is inherently political — and politics will always be about power. The Right understands this, which is why they have been so successful in court of late. Conservative political and legal activists aren’t looking to fix the courts or even formulate superior legal arguments; they know that winning in court is simply about having more power. … The point of progressive court reform should not be to fix the courts, but rather simply to use the courts to enact left policy goals. And the best way to do that right now is to pack the courts. The problem with the courts is not that they’re too political or too powerful or too partisan — it’s simply that they’re too far right. The structuralists are misguided because the courts can never be made spaces shielded from political struggle. Stronger courts, weaker courts, ideologically balanced courts, ideologically unbalanced courts — all are political courts. The way to achieve a more just world through law, then, is not to try to fix the courts, but for the Left to utterly dominate them — as the Right currently does. The structuralists are probably right that courts have become far more powerful than they were supposed to be, but no matter. Politics is not about achieving some sort of Montesquieuian ideal — it is (or, at least, should be) about improving people’s lives. If the most effective way to do that is to win in court, and the most effective way to do that is to pack the courts, then pack the courts.