Antonin Scalia pressed Solicitor General Donald Verrilli during oral argument in the voting rights case Shelby County v. Eric Holder. Scalia embraced the anti-majoritarian powers off the Courts as last refuge against the vagaries of voters and elected officials:
I don’t think there is anything to be gained by any Senator to vote against continuation of this Act. And I am fairly confident it will be reënacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it. That’s the— that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now.
Some of us embrace Justice Stephen Breyer's recent happy talk about judicial sincerity at Harvard where he studied and taught. But some of us, like Elizabeth Warren a bit after me, went to law school in Newark - at People's Electric - Rutgers - the State University of New Jersey. So our vision was formed by the day in 1969 that Justice Fortas resigned from the Supreme Court, ending a seven-year period in which a majority of the sitting Justices had been appointed by Democratic Presidents. Since then - for the fifty one years since I started law school - the Supreme Court has been in GOP-appointed control.
Despite that Republicans have spent the bulk of that time denouncing the courts. And now, thanks to Mitch McConnell's deviousness, tactical brilliance and tenacity, it appears entirely possible that it might be another 50 years until we see another Democratic majority. Yet Democrats consistently outpoll the GOP for Senate, Congress, and President. That is because the Constitution favors small and rural states, which benefits Republicans who mostly consider cities to be sodom and gomorrah. So Yes, Democrats are supportive of making the Supreme Court (and others) roughly follow the election returns.
As to the bigger question: justice rarely triumphs over law. Despite the Enlightenment trumpet of the opening lines of the Declaration of Independence the fugitive slave clause proved to be the more powerful. The slave-owners held the whip hand. Even Massachusetts-born Joseph Story who (unlike John Marshall) owned no slaves buckled under the price the slavers had extracted for an economically advantageous union. In Prigg v. Pennsylvania (1842) he declared the fugitive slave clause was the linchpin and human property was to be protected by the Constitution and its federal supremacy clause. Twenty years later history's then bloodiest war ensued to reverse Prigg and a long line of cases dictated by law, not equity.
The 14th Amendment was drafted as as a mirror image of Prigg, empowering Congress to eradicate slavery and its consequences root and branch, by any "appropriate legislation". But for a century the courts gutted the powers of Congress. They stripped the U.S. of the power to prosecute the murderers of black people starting in Cruikshank v. U.S. (1876). The Supreme Court ratified American apartheid. The Supreme Court finally had twenty good years - from Brown v. Board of Ed. of Topeka (1854) to Milliken v. Bradley (1974) which shut down public school integration efforts. Other than those two decades the Supreme Court has mostly been on the wrong side of anything that mattered.
Ruth Bader ginsburg - my civ pro teacher at Rutgers - managed to get past Antonin Scalia in the VMI case, and Justice Anthony Kennedy jumped ship to squeeze out a win for gay marriage in Obergefell (a libertarian principle). But we couldn't save the right to vote, now under grievous attack thanks to John Roberts, et al in Shelby County. So I have no apologies to offer for favoring the snowball's chance in hell proposal to enlarge the Supreme Court (and others) to change the balance of power.
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