Democrats have a better option than Court-packing

As Matt Bruenig argues at the People’s Policy Project, it would be quite easy in practical terms to get rid of judicial review: “All the president has to do is assert that Supreme Court rulings about constitutionality are merely advisory and non-binding, that Marbury (1803) was wrongly decided, and that the constitutional document says absolutely nothing about the Supreme Court having this power.” So, for instance, if Congress were to pass some law expanding Medicare, and the reactionaries on the court say it’s unconstitutional because Cthulhu fhtagn, the president would say “no, I am trusting Congress on this one, and I will continue to operate the program as instructed.”

No doubt many liberals will object to this idea. It would be a fairly extreme step in terms of how America’s constitutional system functions, and a lot of Democrats fear the idea of a Republican president not being hemmed in by the legal system. Big chunks of liberal political advocacy (like the ACLU) rely on pressing political cases through the courts. Conversely, conservatives have long advanced the idea that they are against “judicial activism,” which makes liberals favor it more through negative polarization.

But in retrospect, Jefferson was absolutely right — American-style judicial review is, on balance, terrible.