Federal Courts and Nominations

How Liberals Should Confront a Right-Wing Supreme Court

For American progressives, the Supreme Court has become a maddening institution. The comforting notion of the court as umpire lies in tatters. It is Justice Samuel Alito’s court now: methodologically flexible but ideologically rigid.

Last term, in Dobbs v. Jackson Women’s Health Organization, the court struck down Roe v. Wade on ostensibly originalist grounds, yet this term it is poised to strike down affirmative action on grounds that make a mockery of original understandings. The court proclaims its fidelity to the past but is actually a font of legal innovation, inventing, for example, novel counter-reforms to the American political system that entrench minority rule by the Republican Party.

These disparate outcomes are consistent in precisely one way: They turn the ideological and partisan preferences of conservative Republicans into legal changes, and these are reshaping our political and economic systems, making them more hospitable to oligarchy.

But the Supreme Court does not have the only word, or even the last word, on the meaning of the Constitution. Liberals must rediscover that basic fact, and the tradition in American politics in which political actors outside the court, especially Congress and the president, use the political tools available to them to assert their own rival constitutional visions, sometimes setting up high-stakes political confrontations with the court.

Instead of trying to legislate within the lines of Supreme Court case law — lines that might be redrawn tomorrow — liberal lawmakers should view the court primarily as a hostile political actor with its own distinctive political incentives, internal divisions and weaknesses.

This is how earlier generations of liberals and progressives implemented their constitutional ideas — in particular, how they strove to prevent the republic from sliding into oligarchy.

Many on the left have forgotten that tradition because of the legacy of their mid-20th-century forebears: a strong attachment to the idea that the Supreme Court, and only the court, is in charge of interpreting the Constitution. In the face of unyielding white Southern resistance to school desegregation, mid-20th-century liberals became passionate advocates of that view. Those liberals won some great judicial victories for racial justice as well as civil liberties and women’s rights. They embraced a vision of the court as the nation’s all-powerful constitutional arbiter.

Half a century later, that vision appears increasingly ridiculous.

The anti-oligarchy tradition played a central role in American constitutional thought and argument from the beginning. The framers differed about many things but agreed on this: A stable republic requires a broad dispersal of wealth, property and political and economic power. From James Madison and Thomas Jefferson through the early 20th century, presidents and lawmakers invoked this anti-oligarchy tradition in political fights — waged with democratic tools, checks and balances — against Supreme Courts they saw reinterpreting the Constitution as a fortress for entrenched wealth and power. We cannot keep our constitutional democracy, our “republican form of government,” they argued, unless we restrain oligarchy and build a middle class broad and wide-open enough to accommodate everyone.

Americans working in this tradition did not agree on how broadly to define “everyone,” nor on what redistributive and structural reforms to advocate. But they all seized hold of the tools the Constitution offers to check the work of a Supreme Court that too often sided with oligarchs: the corporate, landed and slaveholding elites.

To confront a hostile Supreme Court, the people and their elected leaders need to be confident that they, too, have the power and the obligation to interpret the Constitution, as Franklin Roosevelt forthrightly argued during the Great Depression. Facing a court hellbent on striking down New Deal reforms, Roosevelt declared that the Constitution is “a layman’s document, not a lawyer’s contract.” Citing and building on the arguments of Jefferson, Lincoln and Teddy Roosevelt, Franklin Roosevelt called on the “lay rank and file,” “the American people,” to interpret the Constitution for themselves and set their own constitutional vision against the doctrines of the judiciary.

The central constitutional fights of a century ago, like many today, were about the direction of the nation’s political economy. Progressives in the elected branches of the federal government were beginning to enact major redistributive reforms aimed at providing more decent jobs, more social insurance and broad new safeguards for organized labor and the middle class.

These reform measures were anathema to conservative courts’ constitutional vision, so early 20th-century courts struck down many of them. In the 21st century, the Roberts court has revived many of these reactionary, anti-redistributive constitutional ideas to eviscerate measures like Medicaid expansion, campaign finance laws and farmworkers’ ability to organize. The specific doctrines change; the methodologies vary wildly; but the ideological aims are unwavering.

Today’s Supreme Court is likely to embrace right-wing constitutional challenges to new labor laws like the one that recently passed the House, which protects broad-gauge strikes and union organizing. The response of the mid-20th-century liberal — that the Constitution permits such laws — is not enough. To persuade Americans that stern court-curbing measures are necessary, progressives must first convince enough Americans that the court is dead wrong about the Constitution — and that the national government has a constitutional duty to enact laws like the bill that passed the House last year protecting the right to join together and create unions, because otherwise, ordinary working Americans lack the political and economic clout to check the power of big business. Progressives should argue that the Constitution demands laws like these to stem the country’s slide into oligarchy.

This term, this court will decide how far to go in shutting down both affirmative action and race-conscious protections for equal opportunity in the voting arena. The Reconstruction Republicans understood race-conscious efforts like these as indispensable to dismantling the South’s slaveholding oligarchy. They wrote the 13th, 14th and 15th Amendments to redistribute economic and political power to Black Americans, and they read those amendments as requiring Congress to provide them land and education, the franchise and equal rights.

But the right-wing court has decided that these amendments prohibit race-conscious efforts to redistribute some political and economic power and opportunity to Black Americans. Progressives today should do more than argue that such efforts are something the Constitution permits. They should explain instead — as Justice Ketanji Brown Jackson did on her first day on the bench — that the Constitution here means just the opposite of what the Supreme Court majority says. Measures like the Voting Rights Act, which the court has been gutting, are what the Constitution demands.

Today that argument has very little chance in court. That’s why it is up to the political branches to press the constitutional argument and check and balance the Supreme Court.

There are many democratic tools to do that. Congress can expand the court by adding new justices, and although term limits for justices would require a constitutional amendment, Congress could enact various proposals to restructure the court to allow for new justices to be appointed regularly, perhaps every two years.

It can also strip the federal judiciary of jurisdiction to overturn vital reforms. The Constitution gives Congress power to define and restrict what kinds of appeals the Supreme Court can accept and what kinds of cases the lower federal courts can hear. Congress uses this power today more often than one might expect: This year’s Inflation Reduction Act, for example, contained some modest provisions insulating certain administrative actions from judicial review.

Other tools deserve much more attention. Congress can delay jurisdiction, giving laws time to work — and become popular — before review is ripe. It can create politically unpalatable choices for the court through backup provisions that take effect if a law is struck down. None of these tactics will sit well with most Americans if they seem like nothing more than tit-for-tat politics. Progressives must also persuade a majority of Americans that the court is wrong about the Constitution — that it has the Constitution backward. The rights this court denies and the laws it strikes down are often ones the Constitution demands.

But as the aftermath of the Dobbs decision overturning Roe v. Wade suggests, progressives can run on opposing this court. It is a playbook Republicans used to great effect for half a century in their long political backlash against the court Chief Justice Earl Warren led in the 1950s and 1960s. But the Warren court was never as unpopular with the American people as our right-wing court is now. This right-wing majority is testing how far it can go without drawing too much political fire. It is time for progressives to revive their traditions of constitutional politics and political economy so that, as Roosevelt put it, Americans can “save the Constitution from the court, and the court from itself.”

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