Midterms: Will the Supreme Court Heed the Returns?

The writer Finley Peter Dunne, in his 1902 satirical newspaper columns, had his fictional Irish American bartender, Mr. Dooley, observe sagely, “No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns.” 

On March 29, 1937, Justice Owen Roberts, a proper Philadelphian tapped by President Herbert Hoover, voted with the liberals to cast the determining vote in West Coast Hotel Co. v. Parrish, the 5–4 decision upholding Washington State’s minimum wage law. The result is popularly known as “the switch in time that saved nine.” That observation by political satirist Cal Tinney captured the tectonic shift in the Court’s jurisprudence that Roberts’s volte-face in West Coast Hotel foretold. Among other things, the decision mooted President Franklin D. Roosevelt’s court-packing plan, which he unveiled in a “Fireside Chat” on March 9, 1937. The implication is that Roberts’s “switch,” as the Court turned decisively toward the New Deal-era “left,” “saved” a nine-justice Court, if not, as FDR put it, “the Court from itself.”

Roberts’s “switch” actually had nothing to do with the court-packing plan. The change of position took place at the justices’ conference on December 19, 1936, six and a half weeks after Election Day—and two months before FDR elaborated his plan in a Fireside Chat. But even if FDR’s proposal to expand the Court wasn’t the cause of Roberts’s change of heart, the presidential election of 1936, America’s most powerful landslide to date, certainly sounded alarm bells in the palace of justice. As Mr. Dooley observed, “the Supreme Court follows the election returns.”

FDR had just soundly defeated his Republican opponent, Kansas Governor Alf Landon, capturing 46 of 48 states and a 523–8 margin in the Electoral College. His win ushered in a cohort of liberal Democrats into the House and Senate. By November 1936, it was clear that FDR had a mandate, with large supermajorities in Congress. (At one point, Democrats held 72 of 96 Senate seats.) This victory rested largely on opposition to the Supreme Court. Confronted with that undeniable mandate, Roberts—and hence the Court—switched.

So, will there be court enlargement or term limits for the justices in the next two years? The real lesson of 1937 isn’t that court reform failed; it’s that a Court that saw where the country was heading after the 1936 election made courtpacking unnecessary by shifting its jurisprudence to align with the tenor of the times.

Light in the darkness of the Depression Era, FDR was tremendously popular. Although the Supreme Court curtailed some of his New Deal programs with a series of major 5–4 rulings in which Roberts joined the four conservative justices in the majority, those initiatives had overwhelming public support. In the presidential campaign, Landon agreed with the central features of the president’s program. Running on policies the Court had repeatedly struck down, FDR campaigned as much against the archly conservative Supreme Court as he did against the Republicans.

Segue to today, and to last week’s stunning electoral outcome: How is the second Justice Roberts feeling about the election? Will he treat the returns as a shot across his institutional bow?

Democrats resoundingly won control of both the House and the Senate, flipping seven Senate seats (and maybe eight or nine) and winning the national House vote by roughly 13 points, the largest margin for either party in at least half a century. Trump told his claque to “pretend” he was on the ballot, and I have joined other political analysts in calling the result a total rebuke of Donald Trump, which he has said he will accept, although his appointment of Steven Miller as White House Chief of Staff and House Republicans’ choice of the pugilistic and conspiracy-minded Ohioan Jim Jordan as their leader suggests otherwise.

In the weeks and months ahead, pundits will spill a sea of ink noodling what the 2026 election results mean for all of our institutions, and I may weigh in myself. Here, however, I’ll focus only on the Supreme Court.

For most of the last two years, the Court has been largely in the tank for Trump. What have these justices been thinking as they rubber-stamp the outsized assertions of executive authority that have characterized the Trump 2.0 administration? It is hard to see where the Court has not bent the knee to Trump except when its back has been pressed to the wall, and it handed Trump defeats on tariffs, National Guard deployments, Lisa Cook’s firing at the Fed, and birthright citizenship. The scant adverse rulings, however, were so humiliating that Trump personally attacked the justices he had appointed. When the Court struck down Trump’s novel use of an emergency powers law to impose tariffs last February, he rubbished the justices who voted against him as “a disgrace,” “incompetent,” and an “embarrassment to their families.”

The decisions paying homage to Trump’s illegal executive orders were legion. Ruling on its shadow docket without full briefing or oral argument, the Court ruled without reasoning and often without any claim of authorship. Twenty-five consecutive grants of summary relief to the Trump Justice Department in 2025 unleashed singular executive lawlessness, causing enormous harm, much of it permanent.

The excellent Georgetown University Law Professor Stephen Vladeck has cogently argued in The Supreme Court Review that the justices were really protecting their own supremacy, pushing back only when their power was on the line, as in the Alien Enemies Act cases. Vladeck argues that approach was always self-defeating because it emboldened Trump and drained the very credibility the Court thought it was saving. As Vladeck points out, The New York Times recently documented evidence of that dynamic: an administration making routine use of the once-rare shadow docket while engaging in delayed, contested, or incomplete compliance with court orders.

As of January, the Court will not be the only institution standing between Trump and the apocalypse. Congress, no longer supine, can investigate, legislate, and use the power of the purse to man the ramparts. We the people have just told the justices that they are no longer at risk in taking on Donald Trump. The Court, if anything, will be institutionally at risk for not confronting him—and that risk will only increase until January 2029, when the Democrats will retake the White House.

Beyond the Court’s relationship with Trump is an even bigger question: the Court’s relationship with the new Congress, and the increasingly serious specter of Court reform. Major reform by statute is unlikely; even if a bill could get through a Senate filibuster, it’s hard to imagine a veto-proof supermajority on this issue in either chamber.

The midterm results might presage a Democratic victory in 2028 if the Dems don’t blow it. And the justices surely know that Court reform is no longer a shelf issue for the Democratic Party’s left-hand flank. Presumptive Senate Leader Chuck Schumer has said reform will be a priority if Democrats hold both chambers. Presumptive Speaker of the House Hakeem Jeffries has spoken of “dramatic reform.” And Senate Democrats have reintroduced an 18-year term-limits bill.

Whatever one thinks of any of these specific proposals, Democratic victory margins, including the Senate pickups in Texas, Kansas, Iowa, Ohio, Maine, and the Carolinas; a national House earthquake; and the statehouse results, all make that agenda look less fanciful than ever before. It seems a virtual certainty that we will see significant court-reform legislation before the decade is out.

So, if you’re John Roberts, Brett Kavanaugh, or Amy Coney Barrett, how worried are you that “happy days are here again” might transform the Court institutionally in 2029—and how, if at all, will that shape your jurisprudence over the next two years? The real lesson of 1937 isn’t that court packing failed; it’s that a Court that saw where the country was heading from the election returns made court packing unnecessary—aligning with popular majorities to save itself from itself.

But, if in the near term, the Court continues its pattern of supremely partisan 6–3 decisions, its justices will have no one but themselves to blame for what a Democratic government might decide to do about it. Perhaps some binding ethics rules would be one place to start? So, will the Court’s approach to Trump on the shadow docket shift? Mr. Dooley was right; the Court must “follow the election returns,” as the night the day.

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