What I do not want to listen to is liberal whingeing about “unelected judges” or judicial supremacy or kritarchy or whatever. It is finally time for them to sleep in the beds they have made. In the last 60 or so years there has been nothing that Democrats have not been content to allow liberal justices to plumb out from the supposed depths of the 14th amendment, save perhaps for its plain meaning: that no person, born or otherwise, should be deprived of life, liberty, or property without due process of law. Birth control, abortion, the death penalty, the definition of marriage — over and over again, the wills of majorities have been overturned by members of the Supreme Court who knew better than the American people. The still somewhat remote possibility that after several decades of largely fruitless effort social conservatives might just be able to use the same power to reverse a few of the reversals — probably just one, in fact — is not tyranny. The fact that it did not happen many years ago says less about the health of our supposed democracy than it does about the cynicism and incompetence of the GOP.
I am of two minds myself about the de-facto legislative powers assumed by the court in recent decades. The direct election of senators left our federal government in need of a true revising upper chamber after the manner of the House of Lords. This is essentially the role that the court has taken since the 1950s. It may or may not be a regrettable development, but it does seem to me largely inevitable.
So too does a future in which attempts are made by both parties to increase the number of quasi-judicial senators or life peers in what I think of as our upper upper chamber. This is something I have been writing about for years. If court packing becomes a live issue the most likely possibility is that some kind of compromise is reached that involves the creation of “term” justices who serve for four or six years alongside colleagues who hold their positions for life.