The Court Is Not Your Friend
The Court Is Not Your Friend
Progressives have little to lose and much to gain by leaving juristocracy to the enemies of democracy.
It has been over a year since Brett Kavanaugh took his seat on the Supreme Court. More evidence of his assault of Christine Blasey Ford, though by no means conclusive, has been presented in the first of several slated books about the newest oracle of the law and the pitched battle around his confirmation. Yet such attention to any justice, and his ideology or indiscretions, risks missing the point: that it is only because the Supreme Court is so powerful that the national obsession with either a judge’s character or views can become so intense. Whatever else it involves, juristocracy is also a form of politics by other means. And it is not one that progressives should want.
Yet in the past half century they have been principally responsible for it. From its late nineteenth-century conservative beginnings to the mid-twentieth-century liberal attempt to make it their own, juristocracy has been a triple failure of authority, process, and substance. It has been a disaster for the democratic premise that the people themselves choose their own arrangements, shunting decision-making to a council of elders supposedly possessed of unique wisdom. And in exchange for its antidemocratic premises, juristocracy has not delivered the goods that popular interests and needs require. Only democratic politics can.
We will always have judges. Any interpretation of law is a form of rule, and there is no way—contrary to what many of the founders believed—of disentangling “judgment” and “will.” It is for that reason that democrats from Jeremy Bentham (or even Thomas Hobbes before him) through our time have attacked interpretations of judicial power that conceal the ideological choices that saying “what the law is” inevitably involves. No wonder, then, that democratic theorists have long insisted on restraining judges, even while acknowledging that their activity necessarily involves some interpretive freedom to use and abuse. There are disputes to settle under rules, laws to apply to new fact patterns, and overreaching executives to contain.
But juristocracy is a congenitally American malady. Turning to judges as secret agents of political transformation is quite another matter. When the U.S. Constitution first became attractive in the late nineteenth century, it was among conservatives facing the frightening prospect of mass suffrage and finding in James Madison’s handiwork a device for potentially weathering the coming tempest. Englishman Sir Henry James Sumner Maine, to take one example, sang the praises of the U.S. Constitution as “the most important political instrument of modern times” in his Popular Government (1885), for it “proved” the existence of “several expedients” that would allow the “difficulties” besetting any country “transforming itself” into a democracy to be “greatly mitigated” or “altogether overcome.” Unsurprisingly, the powers of the U.S. Supreme Court ranked high on the list of such “expedients.”
American constitutional practice in this era reflected these antidemocratic virtues. American conservatives retrieved from obscurity the case of Marbury v. Madison (1803), which according to myth proclaimed the power of judicial review of legislation under the Constitution (though in reality it did no such thing). Judges suddenly began invalidating more statutes, throwing out progressive legislation at both federal and state levels. It took the strife of the Great Depression, and fear of Franklin Roosevelt, to cow the institution into getting with the progressive program.
Political scientists who have studied the conditions for the exercise of judicial power have claimed it generally follows the democratic will. But no one should minimize the energy and time it can take for judiciaries to catch up to majorities. As a triumphant FDR observed in 1937, “Ultimately the people and the Congress have had their way. But that word ‘ultimately’ covers a terrible cost.”
Within the span of two decades, unfortunately, progressives had embraced a judiciary they once scorned. Fears of a conservative minority imposing itself on democratic legislatures gave way, during the Second World War, to concerns about a tyrannical majority overriding civil liberties. Lost were liberal convictions that the tyranny of powerful and wealthy minorities was more likely to win in the courts. Then, in the postwar era, phobias about mass politics mounted as Western governments sought to distinguish themselves from fascism in the past and communism in the present. Anxious progressives looked to the judiciary to guard against mob rule while ushering in modest reforms, laying the groundwork for the golden age of liberal activism.
Since then, in the popular mind of Americans, the judicial supremacy that liberals embraced in the middle of the twentieth century has been seen as a civic necessity of any democracy, just as it has been a self-evident good in its outcomes. For most of modern history, progressives around the world would have blanched at the first assumption; historians and lawyers in the know have spent the last generation watching conservatives rule from the throne that liberals constructed, wondering whether the second is actually true.
The returns for converting democratic politics into judicial selection have been very meager for the left. The point is not to gainsay some good things that judges did at the zenith of liberal power. But it is worth asking whether the courts were necessary to the outcomes—and whether it was worth depending on an antidemocratic power that the right has now turned against progressives.
On race, to take the most romanticized accomplishment, school integration in the South didn’t genuinely begin until a full ten years after the Supreme Court’s landmark decision Brown v. Board of Education (1954), precisely because it ultimately required federal legislative action. And yet, more than sixty years after Brown, apartheid is institutionalized functionally rather than formally. There are a mere three years of progress (between 1964 and 1967) to show for those running victory laps for the judiciary. Distressingly, data shows that school integration in the North, achieved only partially there to begin with, has been even more undone.
As for the struggle for women’s and gay rights, there is also no doubt the Supreme Court played a role. But the counterfactual is always: compared to what alternative method? Feminists abroad made greater strides than ever occurred in the United States without generalized recourse to judges, while there is no telling what democratic mobilization for gay rights would have gotten under its own power had not the Supreme Court intervened in Obergefell v. Hodges in 2015—without allowing conservatives to pose along the way as the best friends of democratic choice, as Justice Antonin Scalia did constantly, with Chief Justice John Roberts following suit in Obergefell itself.
The objection that there may be territories in the country that would surely reject abortion (as well as gay marriage) if it were opened to a vote is a serious one. But the Supreme Court has, as with school integration before it, already acted to allow those states to eliminate abortion (though not gay marriage) de facto. And the reactionary judicial power that liberals helped conjure does not respect the boundary between red and blue America. Bush v. Gore picked a catastrophic president for the whole country. In more recent years, Citizens United converted national elections into contests pitting oligarch-funded candidates against each other. Janus v. AFSCME pounded another nail in the coffin of public unions. And if a fair verdict on juristocracy is to be reached, it is also worth recalling when an empowered judiciary undermined democracy by failing to act, with the effect of ratifying a near monopoly of executive power on issues like securing the borders against immigrants and fighting enemies endlessly beyond them.
It would be lovely to rely on juristocrats if they patrolled the procedures of the democratic process itself, making sure winners could not lock in their gains by gaming the rules in elections. Surely the judicial affirmation in the United States of basic principles—since they are absent from the Constitution itself—that everyone’s vote ought to be treated equally is worth flagging. But the judiciary has never done much to reinforce the representation of racial minorities. Its more recent track record on this subject has been particularly abysmal.
Then there is class. The drive for the moderation of economic inequality was the central explanation for the democratic victory of progressives under Roosevelt, and the success of their campaign essentially required judges to get out of the way. But even at the high tide of their political ascendancy, liberals couldn’t get the Supreme Court to commit to distributive entitlements of any kind. Neither a welfare state for the least advantaged, nor broader egalitarian justice in the country, is there for even the most creative judges to find under the Constitution’s authority—even assuming a transformed bench.
In short, progressives have little to lose and much to gain by leaving juristocracy to the enemies of democracy. Abandoning judicial politics in a kind of “unilateral disarmament” may seem like a foolish move. But liberals have already lost the race for the heavy weaponry of judicial control of democracy, and they can advocate for the people more consistently and less hypocritically if they press their policies democratically. There is simply no way to restrict judicial activism to one’s preferred causes any more than you can introduce a weapon in a fight with the guarantee that it will only hurt your enemies.
Some have supposed that turning to judicial power to entrench popular victory in “cycles” or “regimes” of politics is inevitable. If it happened under the watch of Roosevelt’s justices, so the next progressive coalition—after declaring war on the Supreme Court if necessary—would witness judges claw back power, or even invite them to do so. But if it was a progressive mistake the first time around to incur the risk of judicial empowerment, whatever the short-term gains, why not learn from it?
The risk of seeing your means end up serving the ends of your enemies applies, of course, to democracy itself, but the risk is not the same in extent or in principle. As its progressive critics have always insisted, juristocracy is clearly more subject to the risk of capture by the powerful and wealthy than democratic mobilization is. Much more important, whereas judicial empowerment is defensible only as a tool that succeeds or fails on balance in advancing democratic ends (at the price of antidemocratic means), wins as well as losses in democratic contestation are defining and valuable features of collective self-rule. You might well lose when you make a case to your fellow citizens. But you will definitely lose if you don’t try.
In the academy, we need less preparation for constitutional politics and more for democratic engagement. Finishing schools for elites whose graduates, in the New Deal, once set themselves the goal of serving the people’s legislature have become anterooms to the judiciary, whispering in the ear of a judge as a clerk the highest initial reward, and ascent to the Supreme Court (now totally controlled by justices who studied at either Harvard or Yale law schools) the ultimate prize.
More training for democratic practice among citizens would also counter the prestige of “constitutional theory” among scholars. That activity rose over the timespan of progressive defeat under juristocracy, but spiked in the 1980s and 1990s, as kind of a cheerleading section intended to buck up liberal spirits in an age of slow-motion political collapse. To read its main works is to find a lot of longing for a lost past or yearning for an unavailable future—pining for Earl Warren’s Court, or the New Deal, or a legendary period of “republican” virtue, syncopated with vague hopes for a future when friendly judges will rule.
Lately the enthusiasm for judicial empowerment has taken the form of unseemly heroine worship, with Ruth Bader Ginsburg and Sonia Sotomayor elevated to the status of secular saints. It is a kind of juristocratic feminism among legal elites to match the reigning neoliberal one among the professional class in general. But instead of merely reviling judges on the other side of the ideological divide while worshiping one’s own, in a pantheon of angels and demons, any serious democrat should reject the religion of the judiciary itself. Other liberals trying to get through a dark night are clinging to the hope that, cajoled by strategic genius Elena Kagan, John Roberts might tack to the center in a few crucial cases. The truth is that the prospect of a “centrist” coalition is more of an anxious fantasy than a political opportunity. Even if it works, it is a distinct improvement on full-scale reaction at the Supreme Court in the same way that a chronic disease is better than a terminal diagnosis.
The important problem to solve in the years ahead is exactly which reform to rally around to chasten the institution. There is a coming healthy debate about which of the different schemes on offer makes best sense, philosophically and strategically, in the short and long term. The Democratic presidential primary shows that some movement is possible, as candidates routinely speak against the Supreme Court, and a few even toy with reform alternatives like court-packing or partisan balance.
Among imaginable reforms, some do indeed risk what worrywarts have taken to calling “hardball” counterattacks, to which the sensible response is that the quest for power has never been softball. But if progressives without an enduring majority in the political branches add some justices to achieve balance as they define it, or “unsteal” the Supreme Court from Mitch McConnell, they should expect the other side to add some more seats when it wins. Reformers should also be wary of borrowing tactics that have already been used by authoritarians abroad. When I taught a seminar on Supreme Court reform at Yale Law School last spring, an Eastern European student always raised his hand to remind the class that the device to contain the judiciary under discussion had already been tried where he is from—and not for the sake of democratic empowerment.
But beyond the pros and cons of reform options lies the still divisive question of principle that progressives should face first. Is a Supreme Court lost to the right indefinitely—even assuming Ginsburg lives long and prospers—in need of reclamation or repudiation?
Many reform schemes circle around restoring partisan equilibrium and undergirding the “legitimacy” of the institution that right-wing hijinks have eroded. That approach would be less embarrassing had liberals not spent generations ceding reform arguments, like the democratic premise itself, to the right, in their zeal to present the Supreme Court as a legitimate source of rule as long as they controlled it. Yet the real problem with the liberal cause is not really that it lost control of the judicial power it built but that it built it in the first place.
Beyond the juristocratic mistake lies a democratic opportunity without parallel in recent times. Juristocracy or democracy? It is an easy call.
Samuel Moyn teaches law and history at Yale. His most recent book is Not Enough: Human Rights in an Unequal World (2018).
