The following is part of a debate between Daniel Hemel and Christopher Sprigman over how progressives should react to the right-wing takeover of the judicial system as heralded by the seating of Supreme Court Justice Brett Kavanaugh.
The Kavanaugh hearings were a disaster, for the individuals involved and for the country. Most people on the left focus on the fact that a man who may well have committed sexual assault is now set to spend the next 30 or more years on the Supreme Court. That’s undeniably bad. But the problem is deeper than that.
What we saw in that hearing room is that our nation has splintered into two camps that increasingly despise one another. We see also that battles over who sits on the Supreme Court reflect—or perhaps have contributed to—this breakdown of American civic culture. In our national mythology, loyalty to our Constitution, and respect for the Supreme Court that is charged with interpreting it, is part of what unites us. But what if that isn’t true? What if the court and the Constitution are part of how the right fixes the game in its favor?
There are two immediate ways in which right-wing judges and justices might help tilt the playing field in the GOP’s direction. The first is the prospect that Trump judges will move to protect the man who appointed them from criminal prosecution. That worry has only worsened with Brett Kavanaugh’s confirmation—in a 2009 law review article, Kavanaugh advocated for a “temporary deferral of civil suits and criminal prosecutions and investigations” for sitting presidents. To be clear, there is nothing in the Constitution that prohibits criminal prosecution of a sitting president. But the absence of an explicit constitutional bar may not stop partisan judges from discovering one.
The second immediate problem has to do with voting rights. The GOP’s voting base is white, old, and shrinking. A new liberal coalition—younger, more diverse, more urban, more educated—is set to displace it. But not if a right-wing judiciary turns a blind eye to the GOP’s hydra-headed voter suppression strategy. Using aggressive gerrymandering, voter ID laws, restrictions on early voting, and moves as blunt as shuttering voting sites in neighborhoods dominated by minority voters, the GOP works tirelessly to delay—and potentially halt—the demographic reckoning that it knows it faces.
The federal judiciary is already too indulgent of the GOP’s anti-voting programs. Back in June, the Supreme Court upheld, by a 5–4 vote, Ohio’s practice of purging its voter rolls. And although in 2017, the Supreme Court let stand a federal appellate court decision striking down a GOP-engineered North Carolina voter suppression law that, in the words of the appeals court, targeted black voters “with almost surgical precision,” North Carolina Republicans have already put a new set of restrictions in place, and with the Supreme Court’s conservative majority bolstered by the Kavanaugh confirmation, we may see them upheld this time around.
The federal judiciary, in short, is unlikely to save our democracy. In fact, it’s more likely to join in the attack. The question for progressives and defenders of small l liberal values alike is this: How should they respond as highly partisan, anti-majoritarian rulings only increase by a firmly ensconced conservative majority for the coming decades (plural).
The temptation, of course, the next time Democrats are in power will be to shrink the power of the courts to reverse democratic decisions.
That is a double-edged sword—a reduced judiciary will no longer have the same power to curb a future Republican Congress or GOP-controlled state legislatures either. It could also lead to a never-ending tit-for-tat escalation, with the final blow perhaps coming from the next leader with the authoritarian instincts of Trump but a bit more cunning. That first trade-off would be worth it, but the latter is admittedly harder to grapple with.
Still, progressives must now at the very least reckon with the fact that the Supreme Court never was the progressive champion that the left believed it to be and plot a path forward from that premise. The left’s previous embrace of the myth of the court as a force for social good tends to come from the general view of the Constitution and the Supreme Court largely as a force for progress. The reality is that on the major civil rights decisions of the past 60-plus years, the court has followed rather than led public opinion and has often been ineffectual in the championing of progressive ideas.
This particular brand of the court as progressive institution myth focuses on a small subset of its decisions, and especially those of the Warren court era of the 1950s and ’60s, including Brown v. Board of Education, which declared segregated schools unlawful. The left also focuses on more recent decisions such as Lawrence v. Texas (2003), which overturned state laws banning sodomy (which, in practice, were enforced mainly against gay men). But those decisions, and others like them, make a weaker case for the courts, and for the Constitution, than many on the left believe.
Think first about Brown: There, the court ordered that schools be desegregated “with all deliberate speed.” More than a half-century later, are America’s public schools actually desegregated? No, they are not.
The progressive effect of Lawrence is similarly oversold. In its 1986 decision in Bowers v. Hardwick, a 5–4 majority of the Supreme Court upheld a Georgia statute banning oral and anal sex, holding that the Constitution did not confer “a fundamental right to engage in homosexual sodomy.” What changed between 1986 and 2003, when the court issued its opinion in Lawrence overruling Bowers?
Prior to 1963, sodomy was a felony in every state. But by 2002, the year before the Supreme Court handed down its decision in Lawrence, sodomy laws had been repealed by the legislatures of 27 states and the District of Columbia, and overturned by state courts in another nine states—all with virtually zero public opposition. The 14 states that still had sodomy laws on the books almost never used them.
The court wasn’t leading in Lawrence. It was following. It was tidying up after the democratic decisions of millions of Americans had already fundamentally improved the nation’s disposition toward gay people.
If the left tends to overestimate the court as a force for progress, it perhaps even more seriously underestimates the court’s tendency toward regress. On balance and over the span of American history, the court has in fact done far more to retard progress than to advance it. Most horribly, the court upheld in its decision in Dred Scott the sanctity of slavers’ property interest in other humans. The court likewise approved in its Korematsu decision the World War II–era imprisonment of Japanese Americans based on nothing more than fear and paranoia. The court recently claimed to overturn Korematsu, but in the context of the Trump v. Hawaii decision in which the court upheld the constitutionality of Trump’s Muslim travel ban. In the Citizens United case, meanwhile, the court turned back legislative efforts to rein in the corruption of our politics that follows inevitably from our First Amendment–sponsored orgy of special interest contributions.
These are just a few examples of a general tendency. The Supreme Court has, time and again in our past and our present, turned the Constitution against both democracy and decency.
And then there’s Roe. The left views Roe as a victory that it must preserve, but Roe has actually been a slowly unfolding disaster for the left, and for the country. Unlike in Lawrence, where the court’s decision followed progressive democratic change, in Roe the court pre-empted it. Roe liberalized abortion law nationwide before the nation had achieved a democratic consensus favoring liberalization.
As no less an advocate for reproductive rights as Justice Ruth Bader Ginsburg has argued, the results have been politically catastrophic. Roe birthed a militant pro-life movement that has been completely co-opted by the right. The net result has been a durable rightward tilt in American politics.
The left has Roe (for now). But it secured that victory at a terrible price. Opposition to Roe is the glue that holds together America’s dominant right-wing political coalition. The price of Roe is all the progressive change we gave up when Roe helped push the center of American politics to the right.
The reality is that the court has never been a progressive institution. And it’s not going to be one for the foreseeable future. In particular, the courts aren’t going to save us from the GOP’s voter suppression efforts—it is, in the end, voters who are going to have to protect the right to vote. And in states where voter suppression efforts go hand in hand with popular Republican legislative majorities (and sometimes unpopular but gerrymandered legislative majorities), voters will not be willing or able to turn the tide. The only way to address that will be for the Department of Justice to get back into the business of enforcing voting rights, and that will require new legislation and Democratic control of the executive branch. Again, the courts aren’t going to help. Nor are the courts up to the job of protecting us from a determined turn by the GOP—or, for that matter, by some future left-wing demagogue—toward authoritarianism. The surest protection against undemocratic politics is a vibrant culture of democratic politics.
Ultimately, the left would be well-advised to get over its unrequited crush on courts and judicial review, as well as the delusion that our old, terse Constitution has much to say about modern problems. It does not, and in any event, too much constitutionalism, like too much democracy, can be dangerous to self-governance and can even destroy a society. The surest and most durable route to progressive change is through the ballot box, and not the courthouse doors.
The question, then, becomes how to shrink the power of courts. There are many valid ways to accomplish that—even without amending the Constitution itself.
Part 1: Should Progressives Wage War on the Supreme Court?
Part 3: The Supreme Court Is a Bulwark of Democracy
Part 4: Three Plans for Saving Voters From a Right-Wing Activist Supreme Court
Part 5: Why Supreme Court Term Limits Won’t Work and What to Do Instead