The Supermajority Review
By Nathaniel Weisberg
Michael Waldman’s new book, The Supermajority, provides a compelling chronicle of how the American right captured the country’s highest court — culminating over three days in June 2022 when the six conservative justices issued a series of decisions that dramatically upended long-settled aspects of American law and society.
During those three days, the court ended the national right to abortion, expanded gun rights, and restricted the federal government’s ability to regulate emissions that are worsening climate change. Waldman deconstructs the judicial philosophy of ‘originalism’ animating these decisions, and questions the supermajority’s fidelity to ‘textualism’ when it does not serve their desired outcomes.
Before Waldman takes a closer look at those rulings, he paints a brief picture of the Court's history from the last two centuries. He begins with Dred Scott v. Sandford (1857) and Plessy v. Ferguson (1896), two disastrous decisions, before moving to the “Black Monday” rulings that gutted major components of FDR’s New Deal, followed by the “switch in time that saved nine” which saw them upheld under the taxation power. He then takes readers all the way up to Brown v. Board of Education (1954) and through to Obergefell v Hodges (2015), which established marriage rights for gay couples.
Waldman, a former speechwriter for President Bill Clinton, is president and CEO of the Brennan Center for Justice at NYU School of Law, a law and policy institute that focuses on improving systems of democracy and justice. Perhaps surprisingly for a liberal critic of the court, he casts a critical eye on what he views as liberal excess in the actions that helped create the current right-wing judicial reaction. In his view, it is the backlash to the liberal judicial overreach of the 1960s that has produced a reaction in the form of the overwhelming organizational energy of the American right over the past 60 years – the huge infrastructure of think tanks, political action committees, and distinctly conservative news outlets.
Waldman criticizes the Warren Court — which presided over landmark cases in the mid-20th Century that expanded rights in areas such as school desegregation, criminal defendant protections, and contraception — for losing its grounding in the law and public opinion, paving the way for the conservative resurgence that followed. Waldman writes that the decision in Roe v. Wade, the 1973 case that established a nationwide right to abortion, was poorly reasoned and needlessly galvanized opposition by grounding its ruling “penumbras” rather than other possible bases, such as the Ninth Amendment, which says that all the rights not listed in the Constitution belong to the people, not the government.
This sentiment is echoed by many pro-choice legal scholars, including Justice Ruth Bader Ginsburg who would have preferred to see abortion rights protected under equal protection for women. According to RBG, Roe vs. Wade “became a storm center because the court ventured too far in the change it ordered.” Rather than resolve the issue, the court’s broad ruling “halted a political process that was moving” to liberalize abortion already, she said, and instead launched “the mobilization of the right-to-life movement” that changed American politics.
In a broader sense, Waldman charges the Left of that era with prioritizing individual rights over other social goods, resulting in a decline in notions of equality. He criticizes liberalism for relying so heavily on the Court to advance progressive policies. This, he writes, led to the weakening of the Left's political position and the strengthening of the Right’s. “The backlash to the 1960s lasted much longer than the 1960s did,” Waldman observes. “Most of us have spent most of our lives living in it.”
Make no mistake, Waldman’s skepticism about the reasoning in Roe does not imply he doesn’t share the outrage over what can only be described as an act of judicial activism in overturning it. When the Supreme Court overturned Roe v. Wade and Casey v. Planned Parenthood, it repudiated the very idea that America’s highest court exists to protect people’s fundamental liberties from legislative majorities that would infringe on them. By overturning Casey, it called into question the core idea that the justices follow precedent. Casey stood for the idea that the court would uphold its past decisions absent a major, transformative reason to do so. Under Casey, lower courts would leave precedents in place. That norm is now gone, and it’s open season on fundamental rights.
Parts of the book read like recaps of already well-reported stories. These sections may feel familiar to readers who keep up with the news about the court — Clarence Thomas’s wife Ginni texting White House Chief of Staff Mark Meadows to stand with the President in attempting to overturn the 2020 election result; the confirmation hearings for Ketanji Brown Jackson in which Republicans attacked her record on pedophilia cases (an allegation the conservative National Review called “meritless to the point of demagoguery”); the Dobbs decision leak; unreported gifts by Justices recently reported by ProPublica, and so on.
Nonetheless, Waldman’s takedown of originalism as deployed by the conservative justices is powerful and persuasive. He isn’t blind to why it can be a useful exercise to consider the meaning of the Constitution at the time it was written, and appreciates that in the hands of a witty and charming Justice like the late Antonin Scalia, originalism can be a compelling method of jurisprudential analysis.
Originalism arose to limit and constrain judges interpreting the Constitution by making sure they would apply only the law as it was originally intended. Using originalism is meant to curb judicial overreach by making judges into neutral, objective decision-makers who only have to answer the question of what the words of the Constitution originally meant.
The Supreme Court in Dobbs was not even pretending to follow a doctrine of originalism. It was using a different interpretive approach, historicism, coined by the German legal theorist Friedrich Carl von Savigny in 1814. The gist of historicism is to draw on historical legal materials to evolve the law in the “spirit of the nation” — Volksgeist in German. This historicism used in Dobbs does not constrain judges nor make them neutral or objective. It empowers them to interpret history to make laws in line with their own ideas about tradition.
Turning the tables on the conservative justices, Waldman applies originalism himself to critique Scalia’s reading of the Second Amendment as conferring an individual right to gun ownership. Waldman makes the familiar claim that “bear arms” actually meant to serve in the military at the time of the founding, and cites regulations on gun ownership that date back to the colonial era and continued into modern American history. Clarence Thomas’s opinion in Bruen blatantly ignores this history and instead cherry-picks from dictionaries that didn’t even exist when the country was founded to extend Scalia’s understanding of the 2nd Amendment.
Waldman uses textualism to critique the decision in West Virginia vs. EPA. That case concerned the interpretation of the amended Clean Air Act, which authorizes the EPA to regulate power plants by setting a standard of performance for their emissions. The statute read that EPA can regulate new and existing plants with different standards, but in each case, the standard should be “achievable through the application of the best system of emission reduction.” The supermajority rejected the plain text of the statute in favor of a “major questions doctrine” – nowhere to be found in the words of the constitution — that says Congress cannot delegate broad power to the executive branch in policy areas that are subject to rigorous public debate and skepticism (AKA almost every issue that relates to politics).
Needless to say, that is utter nonsense.
Throughout the book, Waldman describes how earlier extreme decisions of the court provoked enormous national backlashes. The greatest backlash of all was the Civil War, which arrived just three years after the hateful decision in Dred Scott v. Stanford. Concluding that the court has once again become a serious threat to American democracy, Waldman sees the tides turning again. Democratic successes in last year’s midterms – many based on rage over the fall of Roe v Wade – point to a new backlash in the making. This time the target is the conservative revolution that the court’s supermajority now incoherently pursues.