The Third House Of The Legislative Branch

 Paul Campos examines some of the classic cases of the Warren and Berger Courts and notes that - while we tend to agree with decisions like Griswold and even Roe - there are a number of troubling aspects of those cases. 

The first seems a little pedantic: the Court is basically making up a version of America that really didn't exist. It's arguing that America is a land of freedom and so on, and that something like a ban on interracial marriage is contrary to American ideals (sort of) and history (ha ha...no), and out of this mythologizing, you get the Loving decision. Now, his point is valid, but really seems besides the point. The Supreme Court is not the academy. While Griswold is an important primary source about contraception and what the Court felt about privacy, it's not a peer reviewed historical argument. Obviously, we get junk history all the time from right and the left. Whatever.

The second point is more interesting and important. Since a great many SCOTUS decisions rely on the justices making shit up about history or the law or the Constitution, we have basically created a third legislative body with a five seat majority. This gives us abominations like Bush v Gore and so many voting rights abridgements and the gutting of gun control measures that have typified the Roberts Court. Once you establish the ability of the Court to basically make up laws from the bench, what is "good" (abortion rights, rights of the accused, privacy) can become bad once reactionaries get elevated to the Court. This is the world we live in right now, where I can squint and see a situation where Democrats hold the White House and Senate and win back the House and can't actually govern because the SCOTUS doesn't want shit to happen.

Campos concludes:

But the bottom line here is that the role of the Supreme Court as a quasi-legislature in American politics is becoming increasingly problematic. What ought to be done about this is pretty straightforward: Term limits, an expanded SCOTUS, and the elimination of the Senate taking part in the confirmation process would be a good start.

I would argue that simply ending the filibuster would go a long way towards solving some of these problems. As long as a minority can thwart almost any substantive policy beyond taxing and spending, the Court almost has to legislate. Plus, ending the filibuster would threaten the Court with expansion without actually having to expand it.