By Nicholas Sheppard, journalist, opinion-editorialist, who has written for Politico, The Federalist, The Daily Beast, Huffington Post, and authored the novel Broken Play.
For years, the House of Lords wielded undue influence over UK legislation, often going against public opinion. With the US Supreme Court now deeply conservative, America looks to be heading into a similar scenario.
With the appointment of Amy Coney Barrett, there is now a 6-3 conservative majority on the Supreme Court. A transparently partisan and politicized nomination and appointment process, the prospect of appointees having fewer qualms about legislating from the bench and a majority that might endure for decades has enabled the Republicans to fashion their own version of an obstructionist, conservative House of Lords.
Lifelong appointees deciding what is best for the people, irrespective of the clear prevailing attitudes of the majority of the public, was far from what the Founding Fathers had in mind. The framers of the Constitution didn’t envisage so much power being placed in the hands of the Supreme Court. The delegates at the Constitutional Convention of 1787, discussing judicial power in Article III of the Constitution, didn’t intend for the Supreme Court to become supreme. They expected Congress to perform its constitutional task of shaping the direction of domestic policy.
They certainly didn’t intend for the Supreme Court to be like the UK’s House of Lords: a major powerhouse of conservative influence at the very nerve centre of political life, acting as a ‘chamber of directors’, casting an eye over legislation that comes from the lower house, scrutinizing and delaying bills, forcing the House of Commons to reconsider its decisions, and preserving reactionary interests.
The Supreme Court has become intensely conservative at a time when the US is becoming more diverse and liberal across a broad swathe of social issues. As a consequence, this new court will probably be glaringly out of sync with the general views, values and direction of the country. Against the moderating and tolerant momentum of society, the court’s likely decisions, in matters of huge consequence, will be akin to pulling the handbrake in the middle of the freeway.
It is possible the court will, in the span of a few years, act to dismantle the Affordable Care Act, irrespective of the fact the majority of Americans approve of and want to retain that legislation; revoke or severely curtail Roe vs Wade, irrespective of the fact a majority of Americans approve of that decision; and even plausibly roll back marriage equality, irrespective of the fact a majority of Americans approve of that advancement in civil rights.
Like the House of Lords in a previous era, the Supreme Court will reflexively stall, stymie and overrule majority views, frustrating the legislative agendas of administrations given a mandate by a majority of voters.
For centuries, in Britain, the House of Lords functioned as a means to protect the landowning class, or ‘economic elites’, and maintain conservative values; even if the upper classes didn’t always adhere to those values themselves.
The House of Lords maintained its position as the more powerful chamber of Parliament until the 19th century. The shift came when power became to be defined less by the ownership of land, and more by industrial wealth. Capitalists, and a growing middle class, wanted more of the action.
There are strong parallels between the current state of the Supreme Court, and the friction caused by a dogmatically conservative and obstructionist House of Lords more than a century ago. During the later years of the 19th century, right up till 1914, there was conflict between the House of Lords and the liberals in the House of Commons. Reactionary, social conservativism was increasingly out of sync with what the modern country looked like and wanted. There was a schism in society: peers, ruling for a lifetime, were making decisions for a modernizing and liberalizing middle class.
The House of Lords was challenged after the election of a Liberal government in 1906. In 1909, the Chancellor of the Exchequer, David Lloyd George, introduced into the House of Commons the ‘People’s Budget’, which proposed a land tax targeting wealthy landowners. The popular measure was defeated in the heavily Conservative House of Lords.
Having made the powers of the House of Lords a primary campaign issue, the Liberals were narrowly re-elected in January 1910. Finally, the Parliament Act 1911 effectively abolished the power of the House of Lords to reject legislation, or to amend it in a way unacceptable to the House of Commons.
For years, perhaps even decades to come, the Supreme Court will be analogous to the old House of Lords, stalling the momentum of progress, handing down decisions the majority of Americans disagree with, stymying the agenda of progressive administrations who faced voters at the ballot box and earned a mandate.