It often seems that our politics of rage has created a new age of berserkers, warriors revered for their blind destructive fury. In order to distinguish yourself from the rest of the mob, you must show a willingness to lay waste to any structure or institution on the path to victory. That type of blood-lust politics was on display this week when House Judiciary Committee Chair Jerry Nadler, D-N.Y., Sen. Ed Markey , D-Mass, and others unveiled a raw court packing bill to add four new justices to the Supreme Court to give liberals a one-justice majority. Not to be outdone, Rep. Alexandria Ocasio-Cortez, D-N.Y. not only endorsed the court-packing scheme but appeared to question the very basis for Marbury v. Madison — the case laying the foundation for the Supreme Court in our constitutional system.
AOC challenged the role of the Court in overturning laws. She questioned “just, functionally, the idea that nine people, that a nine person court, can overturn laws that thousand– hundreds and thousands of legislators, advocates and policymakers drew consensus on.” She then added “How much does the current structure benefit us? And I don’t think it does.”
That current structure is called judicial review. It is the very thing that prevents authoritarian rule. Notably, there is little difference in nine or the proposed thirteen justices overturning laws “hundreds and thousands of legislators, advocates and policymakers drew consensus on.” Unless she is suggesting requiring thousands of jurists to review laws in equal numbers, her problem appears to be with the concept of judicial review.
In the 1803 Marbury decision, Chief Justice John Marshall wrote that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.” Part of that right to review is the challenging of unconstitutional federal laws. Marshall noted that “[t]he powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.” He then wrote most famously: “It is emphatically the province and duty of the Judicial Department to say what the law is.”
AOC seems as emphatically convinced that a small number of jurists should not stand in judgment of the demands of thousands. There is a term for that type of system. It is called ochlocracy, or mob rule. Another term, most associated with John Stuart Mill in his work On Liberty (1859) is “tyranny of the majority.” Mill explains that “the will of the people […] practically means the will of the most numerous or the most active part of the people.” Framers like John Adams referred to this form of tyranny and it is precisely what motivated figures like George Mason to demand a Bill of Rights protecting individual rights against the government – and the will of the majority. You do not need a First Amendment to protect popular speech. It is designed to protect the unpopular views of an insular and even despised minority.
What was an enlightened view in the Eighteenth Century is now reactionary in the Twenty-First Century. The Court is an impediment to progress. Indeed, the privileged few justices – whether nine or thirteen – is intolerable for those who seek transform our society. This however is only a tyranny of the majority by the smallest margin. These structural changes are being pushed through despite an election that left the Senate in a 50-50 tie and the House with a now two-seat majority. It is really “tyranny of the mere majority.”
What is most chilling however is AOC’s question “How much does the current structure benefit us? It reflects a crisis for faith. No constitutional system can long survive with a type of leap of faith by the govern – faith not only in the system itself but each other. That faith is now gone. Instead, we have the rise of the berserkers, politicians promising to yield to no institution or tradition that does not “benefit us.”
Back in the age of Vikings, berserkers would throw off their armor and even bite their own shields in pure rage. Accounts of the time describe a type of trancelike state called berserkergang that could describe many in our current politics: a “shivering, chattering of the teeth, and chill in the body, and then the face swelled and changed its color. With this was connected a great hot-headedness, which at last gave over into a great rage.” Norse leaders used the berserkers for their own ends. However, the berserkers had other plans and soon their lust for destruction threatened these leaders themselves. In 1015, Norway officially outlawed berserkers.
President Joe Biden has continued to stand mute as these figures rampage through his party and now the country. He is clearly unwilling to confront them directly and risk AOC or others asking how Biden “benefits us.” Indeed, he is enabling them by refusing to denounce court packing or other extreme demands. These extreme forces could be useful in maintaining Democratic control in the 2022 and 2024 elections. However, if the White House hopes they will serve as Biden’s berserkers, history shows they won’t be for long.