The Senate is about to hold hearings on Ketanji Brown Jackson, President Biden’s nominee to replace Justice Breyer on the Supreme Court. We all know the script. Supreme Court confirmation fights today are about hiding the ball. Nominees generally say nothing about how they’ll decide cases; supporters attest to their brilliance and good character; opponents try to gin up scandal.
In reality, the parties have profoundly different views about what the Constitution means. Their different views have enormous implications for the way we govern the nation’s economic and political life. But virtually none of this gets a hearing in judicial confirmation hearings. Instead, we hear how badly or brilliantly the nominee will call the balls and strikes.
To be sure, a few major issues break through. Even a casual observer of the media circus surrounding recent Supreme Court nominations can make out that Democratic nominees believe the Constitution protects a woman’s right to equality and bodily autonomy and therefore to abortion; similarly, it’s clear that Republican nominees believe the Constitution flatly forbids affirmative action in higher education. But outside these brightly lit hotspots, Americans are mostly in the dark.
This is no way to run a constitutional democracy. For most of the nation’s history, Americans fought about their rival views of the Constitution in a different way: through regular politics, not judicial confirmation hearings. They began from a wiser premise, which fostered more honest debate: It is legitimate for the parties to hold different views about what the Constitution demands. The parties debated constitutional questions on the House and Senate floor, in state houses, and in campaigns up and down the ballot. Later, in the mid-to-late twentieth century, an elite consensus emerged that the only real arbiter of constitutional meaning is the courts. That was a wrong turn.
From the beginning of the republic until that turn, political parties argued openly about what the Constitution had to say about economic life—the role of government, the reach of regulation and redistribution, the relationship between democracy and concentrated private wealth and power. Advocates on all sides made constitutional arguments about these ground rules of what they called “political economy.” It’s a term worth reviving.
Today’s Republican Party is engaged in a massive, decades-long war against the powers the federal government gained in Reconstruction and the New Deal. The party’s constitutional outlook is not only hostile to affirmative action and abortion rights. Harking back to an older brand of laissez-faire constitutional thinking, the Republicans aim to safeguard wealth from redistribution and protect business from regulation and capital from organized labor.
The conservative majority on the Supreme Court is baking these ideas into constitutional law, ruling that the property rights of agribusiness nullify farmworkers’ right to organize, that the federal government lacks the power to expand Medicaid across all states, and that campaign-finance rules violate the free-speech rights of the rich. These rulings aim to build a particular kind of political economy: one where property and contract rights are strong, antitrust and other kinds of regulation are weak, unions are nonexistent, social insurance is rolled back, and no campaign finance rules constrain the influence of the wealthy and powerful over the nation’s politics.
Democrats are pushing in the opposite direction, but with a striking difference. The Democrats have forgotten that they once had constitutional arguments on their side of all these fights. Today, while Republicans boldly transform constitutional doctrine, Democrats rely on thinner, legalistic arguments about preserving old precedents, in an increasingly futile attempt to hold the line.
The Democrats have forgotten a long tradition of constitutional argument that speaks directly to the problems of inequality and oligarchy they hope to address. For most of American history, we show in our new book The Anti-Oligarchy Constitution, when courts and their conservative patrons declared that regulation and redistribution were unconstitutional, reform-minded presidents, lawmakers and citizens responded that the Constitution doesn’t merely allow such measures; it demands them. The Constitution requires protecting our “Republican Form of Government” from becoming a “moneyed aristocracy” or “oligarchy.” This means Congress and others have a constitutional duty to ensure that wealth and economic and political power is widely distributed among all the people, not concentrated in the hands of a few. These ideas were central to Reconstruction and to FDR’s New Deal, with its pitched battle between the elected branches and hostile, conservative courts.
Today the question is: will modern progressives accept the fiction that the court is an umpire outside of politics—and the idea that only courts can interpret the Constitution? Or will progressives reclaim the older idea that the Constitution is a central part of politics?
Roosevelt and his allies held that the Constitution demanded wage-and-hour laws, labor law, social insurance, and other measures to avert oligarchy and build a modern democratic constitutional political economy. The Supreme Court fought to block it all, in the name of a vision of constitutional political economy similar to the Supreme Court’s today. But FDR prevailed. Through politics, he and the New Dealers in Congress convinced durable majorities of Americans of their views about constitutional political economy. By threatening to pack the court, Roosevelt convinced the court to back off.
This was deeply partisan—deeply politicized. It was also how we built the modern constitutional political economy that enabled the United States to function as a modern republic for the past 90 years. Along the way, liberals lost the thread. Inspired by the Supreme Court that decided Brown v. Board of Education, liberals abandoned their Progressive forbears’ deep skepticism of courts. Conservatives never forgot how they had once gotten their way on the most important political-economic questions by capturing the courts, and they set out to do it again.
Now they have succeeded. The Supreme Court is theirs, 6–3. The question is what the rest of us will do.
Will we accept the fiction that the court is a guild of special umpires, whose brilliance gives them the right to draw the political and economic lines within which the rest of us live, and call it law? Or will we recognize, instead, as FDR said, that “the Constitution is a layman’s document, not a lawyer’s contract”? As FDR said in that speech, “ultimately the people and the Congress” can shape what the Constitution means. That sometimes requires confronting a hostile court.
There are many ways for the elected branches to push back against an intransigent court. Court-packing – or the threat of it – is only one. But before reform-minded lawmakers can persuade voters of the need for dramatic institutional change, they must make the case, via politics, for why the court’s vision is wrong, and how it has strayed much too far from the views of the majority of Americans about the kind of national community the Constitution promises to promote and redeem.
It is time for Congress, and the people, to stop treating the Constitution as a conversation-stopper. Rather than an outside, umpire-like constraint on politics, the Constitution and the fights about how to interpret it have been at the center of American politics—partisan politics—for over 200 years.
We understand the conventions of a modern judicial confirmation hearing. We don’t expect much in the coming days. But stepping back from this hearing, it is time for Congress to reclaim the idea that the Constitution doesn’t just set limits. It also places obligations on legislators and on us all. First among these is an obligation to build a political economy that is compatible with democracy: one in which both economic and political power are held by the many and not hoarded by the few.