Marginalizing The Supreme Court

There is a curious belief among progressives that they are not merely smarter, righter and better than others, but the majority, because how could any decent person be anything  other than a progressive? This arrogance leads a couple of law profs to propose a monumentally disruptive concept: Ignore the 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.

As they go on to describe the Dobbs decision, which from any perspective other than that of the right fringe, was a disastrous, and uses that as a jumping off point for the balance of the progressive view that the only good Court is one that uses its authority to reinvent law to the left.

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.

And they are, indeed, “poised” to do something, which may well be another disaster or not. Given how wrong I was about the Dobbs decision, which I was certain wouldn’t overrule Roe but did, I refuse to predict that the Supreme Court won’t do the same with affirmative action. But then, I also won’t predict that it will. Others are not willing to take the risk.

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.

Initially, the use of the word “liberals” is theft. Liberals do not believe the ends justify the means. Liberals are not intolerant of any view that challenges woke orthodoxy. Liberals do not seek to strip civil rights from heretics because they hold opinions with which we disagree. Just as the right can’t steal the “okay” hand sign, the left can’t steal the word liberal. You’ve progressive. You’ve got woke. But you are not, at all, liberal.

But then, what is this “tradition” in American politics of the political branches asserting their “rival constitutional visions”?

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.

And they have a point. FDR did it. Lincoln did it. It was hardly a given when the Supreme Court decided Marbury v. Madison and assumed, for itself, the final word of what was constitutional. But this isn’t what these progressive prawfs are talking about.

The anti-oligarchy tradition played a central role in American constitutional thought and argument from the beginning…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.

It may be fair to argue that the founding fathers were against the creation of an oligarchy, having just thrown off the chains of aristocracy, but it’s facile fantasy to believe that this meant they favored some pseudo-socialist nation whose primary purpose was the redistribution of wealth.

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.

It’s not wrong to argue that history reflects political choices made by presidents and Congress to push the envelope of what was constitutional against a Supreme Court slowed, if not stopped, change. Of course, that’s the nature of the Court, and law, to provide social stability so we don’t live in a constant state of legal flux that leaves us incapable of knowing what is and isn’t lawful.

So what do these progressive prawfs propose, beyond the obvious addition of new left justices and term limits?

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.

This is a very curious proposition, revealing two troubling and deeply progressive notions. First, they want to preclude challenges to woke laws to give them time to work, suggesting that they believe they will work, hope they will work, want them to work, but have no clue whether they’ll work. Should be leap off a cliff and hope that by flapping our arms really fast, we will fly?

The second is that if progressives laws are given time, they may “become popular.” In other words, at the time of enactment, they are unpopular, unwanted and undesired by the majority of Americans, but because progressives are smarter, righter and better than anyone else, they should be entitled to make their changes and, should they work, the groundlings will eventually come to like them. If you didn’t like the last oligarchy, give it some time and maybe you’ll like the new oligarchy better. All it takes is to marginalize the Supreme Court and let them decide what’s constitutional for themselves.