Court Reform Can’t Be Limited to Reforming Courts

On March 24, 1911, New York’s final appeals court declared that the state’s recently enacted workers’ compensation law was “plainly revolutionary”—a “radical” departure from the common law that “plainly constitutes a deprivation of liberty and property under the federal and state Constitutions.” The court’s constitutional interpretation immediately nullified the law. The next day, at approximately 4:40 pm, a scrap bin caught fire on the eighth floor of Manhattan’s Triangle Shirtwaist Company factory; its rapid spread would claim the lives of 146 garment workers locked inside.

Public outcry about the industrial disaster led to landmark worker protections in New York, many of which were later federalized during the New Deal. But the Ives vs. South Buffalo Railway Co. decision that had immediately preceded it fueled a growing reform movement of its own: against the democratic harms of what many contemporaries termed “judicial oligarchy.” 

Speaking to Ohio’s state constitutional convention the next year, former president Theodore Roosevelt cited the decision in a broad critique of judicial supremacy in matters of constitutional interpretation. He reminded the delegates that the US Supreme Court had in 1908 invalidated the national workers’ compensation he signed into law as president—with three justices in the majority taking what Roosevelt called “the extreme position that there was no way in which Congress could [constitutionally] act to secure the helpless widow and children against suffering, and that the man’s blood and the blood of all similar men when spilled should forever cry aloud in vain for justice.” He continued: “There are thousands of Iveses in  this country . . . [where] the courts deny essential and elementary justice to these men and give to them and the people in exchange for justice a technical and empty formula.”¹

The same year, US Senator Robert La Follette (R-WI) wrote that the judiciary had “grown to be the most powerful institution in our government,” becoming—through its regular exercise of the veto power on behalf of “the wealthy and powerful few”—“the strongest bulwark of special privilege.”² As William G. Ross has recounted, a coalition of labor organizers, agrarian populists, and antimonopoly intellectuals—based on the shared conclusion that courts had “usurped the powers of Congress and thwarted the will of the people by . . . nullifying legislation that was designed to ameliorate the more baneful effects of the Industrial Revolution”—united behind efforts to restrain judicial power.³

Over a century later, Americans are again confronting the mutually reinforcing consequences of oligarchy and juristocracy. Popular efforts to mitigate vast economic inequalities, or to address the democratic harms that result from concentrated wealth, remain vulnerable to the unreviewable whims of conservative justices—many of whom received their lifetime appointments precisely because of their demonstrated hostility to such goals. Today as before, there are growing calls for judicial reform.

As progressives take on the urgent task of building resilient democratic institutions that will help secure shared prosperity, we would do well to learn from the efforts of these past reformers—who paired their critique of judicial power with efforts to construct alternative pathways to popular change. They understood that the federal judiciary’s unusually central role in American politics results not only from features of its own design, but also from the countermajoritarian design of our other institutions. We should continue to pursue, as they did, institutional changes that will strengthen the integrity of our legal system. But especially today, we must emphasize: Any vision of “court reform” that is limited to “reforming courts” will not meet this moment.  

In his recent book, Aziz Rana describes how a wide array of early 20th-century reformers “supported a series of institutional reforms consciously aimed at overcoming the counter-majoritarian tendencies of the 1787 Constitution”⁴—including, in particular, the system’s “endless veto points [that] made it nearly impossible for those less privileged to use elections to better their lot, while business elites wielded outsized power at virtually every level of government.”⁵ Their successful influence can be seen in the design of our 50 state constitutions, which generally are considerably easier to amend than their federal counterpart. 

When Roosevelt made his critique of the judicial veto, for example, he was speaking to delegates who were debating a proposal that would give Ohio residents the power to directly initiate new laws and constitutional amendments, and to overturn laws enacted by their state legislature. He used the occasion to articulate a broader vision of popular democracy, as shaped directly by institutional design: “I therefore very earnestly ask you clearly to provide in this Constitution means which will enable the people readily to amend it if at any point it works injustice . . . [and] to settle what the proper construction of any constitutional point is.”⁶ 

The initiative and referendum amendment was adopted, first by the convention delegates and then ratified by 58 percent of Ohio voters in a special election. (But not without a fight: One contemporary account described that “[e]very ruse and trick known to Big Business politicians was employed to frighten the people of Ohio from adopting” the change.) Roosevelt’s vision was vindicated when Ohio voters, 111 years later, used this authority to directly amend their constitution to protect abortion rights—newly threatened by the US Supreme Court’s reversal, in Dobbs, of its own interpretation of the federal constitution.⁷ 

This victory represents a broader pattern. In recent years, state referenda to protect abortion rights and expand Medicaid—in response to US Supreme Court decisions—have a nearly undefeated record at the ballot. Two years after Ives, New York’s state constitution was amended to give its legislature the full power to enact a workers’ compensation system (which it did the following year). This century-long dynamic suggests that if the people could amend the federal constitution directly, even the latent power would be an important limitation on the court’s power. 

The American system of judicial supremacy is far from a universal feature of contemporary democratic governance. Other key features of our court design, like lifetime judicial appointments, are shared by none of our contemporaries.⁸ But even among wealthy democracies where judicial review is provided, each has—as compared to ours—a legislative process that is less resistant to new enactments and a constitution that is easier to amend. That is because the United States represents a distinct comparative outlier with respect to both its federal legislative process (having one of the most veto-laden⁹ legislative processes and malapportioned upper branches¹⁰) and procedures for formal constitutional change (being the most difficult written constitution to amend¹¹). 

Our Supreme Court wields a “super veto” within our political system not simply because of what its justices can do—namely, strike down legislation and amend the public meaning of constitutional law, by simple majority vote—but also because other bodies, and the people themselves, cannot easily do the same. As Roosevelt phrased it, speaking to the Ohio delegates: “If the courts have the final say so on all legislative acts, and if no appeal can lie from them to the people, then they are the irresponsible masters of the people.”¹²

Progressives should continue to push for internal reforms like judicial ethics and process changes that make it more difficult to judge-shop for national injunctions. They should advocate for broader reforms, like the replacement of lifetime appointments with the staggered 18-year term—and consider membership expansion. But they should not imagine that any of these changes will be enough to end our juristocracy, which is the product of a constitutional system that effectively reserves to courts the exclusive ability to change formal constitutional meaning.