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Tuesday, August 16, 2022

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The Supreme Court wasn’t always the final arbiter of the Constitution


A right-wing political party, with the support of only a minority of Americans, controls the federal courts. Through the courts, it imposes its policy vision on the nation, usurping much of the power of the elected branches. The question is how a liberal majority will respond. It all sounds painfully familiar. But we are talking about 1935, not 2022.

There are differences, to be sure. The sheer audacity and sweep of the agenda of today’s radical Supreme Court is unique in U.S. history. Only the modern Supreme Court, built in the mid-20th century, has had the kind of power it now asserts across so many important areas of American life, including elections, abortion, LGBTQ rights and gun and climate change regulations. In the 1930s, though, the Supreme Court was just as radical and right-wing as today’s court when it came to the issues most salient in that era’s constitutional politics. That is why it’s so important to understand how and why President Franklin D. Roosevelt and his party pushed back successfully against it.

Roosevelt and the Democrats had several potential checks on the court’s power: constitutional amendments; removing the court’s jurisdiction from certain cases; or adding additional pro-New Deal justices to the court (“court-packing”). They chose court-packing. Faced with this threat, the court backed off. It stepped back from striking down New Deal social and economic reforms. It flipped and upheld central pillars of the New Deal including the National Labor Relations Act, the Social Security Act and the regulatory work of the new administrative agencies these New Deal statutes created.

In one way, liberals today face a harder road than Roosevelt’s party in fighting back against the court. Today’s liberals are in the thrall of a mid-20th century vision of judicial supremacy. They generally despise — and can pick apart the reasoning of — the rulings of the current crop of right-wing justices. But they view the court as the final, perhaps even the only, arbiter of what the Constitution means. This devotion makes today’s liberals uncertain, anxious and ambivalent about using the many available checks and balances against the judicial branch. The history of how liberals became so attached to the court’s authority is instructive for those who hope to constrain the power of right-wing justices today.

This all-powerful court is a glaring anomaly. For generations, reform-minded presidents and lawmakers of all parties — from Thomas Jefferson and Andrew Jackson and their party to Abraham Lincoln and his, from Teddy Roosevelt and the Progressives to Franklin D. Roosevelt and the New Dealers — held that the final constitutional arbiter was not the court, but the people themselves. Constitutional arguments were part of politics. If the court struck down measures that were constitutionally essential, the political party that disagreed would fight back by electing leaders to enact new laws. From the campaign trails to the halls of Congress, politicians engaged in what scholars call “popular constitutionalism.”

For most of American history, all sides did this. Indeed, when the Supreme Court flipped and upheld New Deal legislation and the new agencies of the administrative state, conservatives began their own campaign of popular constitutionalism. They assailed these new laws as “despotic” and “lawless” violations of the old order of capitalist property rights and business free from regulation. The New Dealers responded by drawing on a rival tradition of constitutional argument as old as the Constitution itself: They argued that ensuring working people’s safety and economic security — and safeguarding their rights to organize and exercise collective economic and political clout — were constitutionally essential. They were necessary to prevent the republic from sliding into oligarchy. All sides made their constitutional arguments on the floor of Congress, in state legislatures, in election campaigns and sometimes also in court.

But in the mid-20th century, American constitutional politics changed. Americans in general — and liberals in particular — came to view constitutional arguments as almost exclusively the domain of the courts.

This shift began after World War II, when the court — now full of New Deal liberals appointed by Roosevelt — carved out a different role in American constitutional life. It began to stand up for civil liberties, and then civil rights. Under Chief Justice Earl Warren, the court began dismantling Jim Crow segregation in the South.

For once, the court was channeling liberal constitutional values. When the Warren court ordered the South to desegregate its public schools in Brown v. Board of Education, White Southern leaders launched a campaign of massive resistance. White Southern senators and congressmen signed the “Southern Manifesto,” which cast Brown as a decision “contrary to the Constitution” and “a clear abuse of judicial power.” Soon conservatives outside the South joined Southern calls to “impeach Earl Warren,” as the Supreme Court held that prayer in public schools violated the separation of church and state (a decision some called “communist”).

In response, liberals doubled-down on the view that the Supreme Court — rather than politicians — was in charge of how to interpret the Constitution. A prominent group of liberal lawyers and legal scholars declared, “[t]he Constitution is our supreme law” and “in cases of disagreement we have established the judiciary to interpret the Constitution for us.” Many of the same lawmakers who had, as young New Dealers in the 1930s, joined Roosevelt in lambasting the right-wing Supreme Court, now decided, in the 1950s and ’60s, that Roosevelt’s court-packing plan had been a dangerous overreach, contrary to the rule of law. For politicians to challenge the justices as Roosevelt had done now seemed to invite segregationist defiance and lawlessness.

Liberal reformers and their allies began to fight court-centered battles not only for racial justice, but also for women, consumers and the environment. In the process, they embraced a legalist outlook and tool-kit earlier generations had shunned that emphasized individual-rights claims, strong judicial oversight of public authorities and legalistic, procedural conceptions of fairness and equality. These liberal reformers won some great victories — not only Brown v. Board but Roe v. Wade and many others. And in the process, liberals learned to love the courts and to imagine that constitutional law was separate from politics — an outlook that would have flabbergasted Madison, Jefferson, Lincoln and Roosevelt.

Liberals drew the wrong lessons from the mid-20th century federal judiciary’s fleeting embrace of social reform, and forgot that over the long arc of U.S. history, the minority rights the court has most consistently safeguarded have been those of the wealthy and powerful, the corporate, landed and enslaver elites.

Decades have passed since the court was the friend of racial minorities and women’s rights; its substantive constitutional outlook has grown ever more reactionary over the past half-century. Despite this, liberals have clung to the historically peculiar notion that only the court has the authority to interpret the Constitution. Liberals managed to win a few high-profile victories, notably on LGBT rights. But beginning in the late 1970s, conservatives began to organize politically against Roe v. Wade. Liberals focused on defending it — in the judicial, not legislative, branch. This fueled a liberal emphasis on the importance of “stare decisis,” or leaving settled law in place. Liberals clung to stare decisis and judicial supremacy in the hope of protecting the court’s past decisions from the vicissitudes of today’s politics.

Conservatives, meanwhile, never fetishized judicial constitutional authority. They spent decades refining arguments in the political arena against the constitutional decisions of the Warren court. These arguments brought together a new electoral coalition — one organized around not only Southern White resistance to desegregation but also religious conservatism and opposition to the New Deal regulatory state. This coalition articulated its vision of the Constitution contrary to the Supreme Court’s; it passed laws in defiance of the court. And it focused heavily on the project of appointing like-minded judges, from state courts all the way up to the U.S. Supreme Court.

This coalition has now installed a lopsided right-wing majority on the Supreme Court — a majority that consistently, across an enormous range of issues, finds ways to turn right-wing policy preferences into constitutional law.

If the broad American left can build a governing legislative majority, the question will be how much longer it takes them to recover the democratic spirit of popular constitutionalism and its legislative tool-kit. To unravel the right-wing court’s rulings, they need to enact laws to push back, rather than continuing to defer to the court, as their 20th-century liberal forebears did. But to do this, they need to recover the outlook that conservatives never abandoned: that the court is one actor in a larger legislative and constitutional drama, a powerful one, but far from the only branch with the authority to interpret the Constitution, a document that belongs to us all.

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