Liberal SCOTUS Judges are Calling Out the Court's Crisis of Legitimacy. Why Aren't Dem Politicians?
President Biden and his allies in Congress and state capitols have coalesced around one big strategic idea, to reinvigorate and update the New Deal–Great Society–Obama Democrat policy agenda—the better to demonstrate the Democratic Party’s desire and capacity to address the needs of working- and middle-class constituencies, broaden the party’s resonance with professional and suburban voters, and revitalize unions and other institutional bases of political support. They’ve played this game quite well—with one glaring, perhaps fatal exception: They’ve not come up with a game plan to prevent the ostentatiously reactionary, often partisan Supreme Court 6–3 supermajority from scuttling their current agenda or from dismantling the foundational ideas from previous decades on which their new platform has been erected. Indeed, they have yet to even try.
This is nothing new. For decades, Democratic politicians have dodged challenging the ultra-right’s drive to junk the post–New Deal liberal Constitution, with made-up doctrines that, in the apt words of liberal Justice Elena Kagan, would make “most of government unconstitutional.” It’s a good line from a justice who understands that such rhetoric can be a powerful weapon. It stands in stark contrast to a Democratic Party that has remained perversely tight-lipped in the face of the existential threat the Supreme Court poses to its aspirations. If Democrats want to change this dynamic, they will, at the very least, have to start talking about it.
In its first two terms following Biden’s ascent to the White House, the court’s right-wing justices have flaunted their zeal to validate Reagan Solicitor General Charles Fried’s 2020 warning that they would “take a constitutional wrecking ball to generations of Supreme Court doctrine.” In addition to their incandescent elimination of a half-century-old individual right to abortion, the reactionary justices have, with less notice, overridden explicit constitutional and statutory text to ax long-standing labor, consumer, health, safety, environmental, and civil rights regulatory and safety-net guarantees.
In one of the most egregious overreach cases, their June 2022 invalidation of the Biden Environmental Protection Agency’s regulatory plan (supported by both environmental and power industry advocates) for slashing power plant carbon emissions, the justices effectively empowered themselves to nullify any executive program of which they, their political allies, or major political donors disapprove. They twisted a hitherto little-used “major questions” doctrine to confer onto themselves the power and permission to block any executive initiative not to their liking, consistency with relevant statutory text notwithstanding—a vacuous doctrinal confection could cover any important regulation or agency action.
Biden, and most Democratic politicians, reacted to these body blows to liberal governance with little more than feckless press-release lamentations that treat these “retrograde rulings”—to use historian Jeff Shesol’s words—as “discrete events rather than the defining project of the court’s conservatives: to lay waste to the welfare state and the administrative state, the civil rights revolution, the underpinnings of an accountable, workable government.” The tenacious resistance among many Democratic politicians to publicly challenge the court’s misdeeds stands as a spectacular act of self-abnegation.
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Liberals internalized this idea after President Franklin Roosevelt’s Supreme Court appointees vanquished their predecessors’ anti-regulatory activist “Lochner-era” version of the Constitution. The court, under Chief Justices Earl Warren and Warren Burger, reclaimed an activist role, this time to vindicate individual and minority civil rights and liberties. Now deeply embedded, this model is an axiomatic assumption.
However, it’s incorrect. Liberals’ phobia about mastering and publicly messaging constitutional and legal claims is ahistorical. Not only do their current adversaries on the right assiduously wrap themselves in the Constitution and ignore the idea that certain discussions are somehow gauche; liberals’ own ideological predecessors did likewise. Icons such as Franklin and Theodore Roosevelt, Abraham Lincoln, and the original Framers, including Jefferson and Madison as well as Washington and Hamilton, crafted legally sophisticated but politically canny characterizations of the text and Framers’ design of the Constitution and relevant laws. They had public exchanges that echoed across the media and an electorate that observers from de Tocqueville onward have long recognized is idiosyncratically inclined to view political issues through a legal and constitutional lens.