The Supreme Court Judged by a Judge

Jed Rakoff is a Senior United States District Judge. In a book review for the New York Review of Books, he summarizes the history of the Supreme Court from the 19th century to the 21st:  

Over the course of American history, the US Supreme Court has usually been the most conservative of the three branches of government, often to a reactionary extreme. Indeed, an objective observer might well conclude that it has frequently encouraged our nation’s darkest tendencies.

In the decades immediately preceding the Civil War, the Court not only rigidly enforced slave laws but also declared that even free African Americans were not US citizens (Dred Scott v. Sandford, 1857). It reduced Native Americans from sovereign nations to wards of the state (Cherokee Nation v. Georgia, 1831), which was free to remove them from their treaty-prescribed lands and send them on the deadly Trail of Tears to bleak reservations hundreds of miles west. In the decades following the Civil War, it undermined Reconstruction (the Civil Rights Cases of 1883), legitimized Jim Crow (Plessy v. Ferguson, 1896), denied women the right to vote (Minor v. Happersett, 1875), and treated union activities as illegal conspiracies (Loewe v. Lawlor, 1908).

In the first decades of the twentieth century, the Court went to great lengths to hold progressive legislation unconstitutional (for example, in Lochner v. New York, 1905), especially laws that sought to protect women and children from exploitation (Adkins v. Children’s Hospital, 1923). And when, in response to pressure from (and ultimately appointments by) President Franklin Roosevelt, the Court somewhat relaxed its disapproval of federal social welfare legislation, it continued in many cases to show a callous disregard for the rights of individuals and minorities, as demonstrated by such decisions as its cavalier approval of the internment of loyal American citizens of Japanese descent during World War II (Korematsu v. United States, 1944).

There was a brief period in the 1950s and 1960s when the Court sought to recognize its past mistakes and move forward, and while the advent of the Warren Court in 1953 was something of a fluke (no one remotely expected that Earl Warren and William Brennan—both nominated by a Republican president, Dwight Eisenhower—would develop into the great champions of liberty they became), in its relatively short duration it demonstrated how the Court could, if it wished, be a leader in the enhancement of civil rights and the protection of minorities. But beginning in the 1970s, the Court gradually resumed its traditional conservative stance, for example by limiting the Warren Court’s efforts to combat police misconduct (City of Los Angeles v. Lyons, 1983). And now, thanks to [the last president’s three] appointments, the current majority has reduced some of the Court’s most progressive past decisions to ashes….

Judge Rakoff then gets to the book he’s reviewing: Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment. (I’m skipping most of the long review.) Rakoff argues that Justice Frankfurter, a progressive appointed by one of our most progressive presidents, Franklin Roosevelt, was too restrained in his rulings:

Liberals were initially thrilled by Frankfurter’s elevation. But they quickly learned that his conception of a “liberal” Court was rather different from theirs. The conflict was even more noticeable within the confines of the Court, where Frankfurter’s belief that progress best lay in limiting its review of state and federal legislation so as to let the democratic political process hold sway repeatedly clashed with the view of its newest member, William O. Douglas, that the Court’s responsibility was to protect the civil rights and civil liberties of minorities and individuals…..

One of the many virtues of [Democratic Justice] is the wealth of detailed evidence he provides for each of his assertions. His own assessment of Frankfurter’s virtues and faults is that he was prescient in seeing how the supposed lack of restraint of Warren Court jurisprudence could come back to haunt American liberals once the Court returned to its more traditional conservative stance. My view, however, is that Frankfurter got so carried away with his philosophy of restraint that he failed to recognize basic principles of checks and balances inherent in our constitutional design, and in particular the natural purpose of the Court to protect individuals and minorities against excesses in which elected officials and legislators too often engage.

Moreover, it is easy to pay lip service to a particular judicial philosophy in order to achieve any desired result. For example, the Court’s recent decision in Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade, can be interpreted by its supporters as an exercise in Frankfurter-like restraint that leaves the issue of abortion to state legislatures, while its opponents can view it as the Court’s refusal to exercise its inherent responsibility to protect individual rights.

What may not be gainsaid, however, is that the Court has now returned to its historically conservative tendencies with a vengeance that can only be called reactionary. And if you put aside arguments over judicial philosophy and look at the practical results, it is worse than that.

In the last few days of its most recent term, the Court released a series of decisions that, whatever their purported rationales, made the world a more dangerous place: more dangerous for poor people of color, who can no longer effectively seek redress for certain forms of police misconduct; more dangerous for women, who in many states must now resort to backroom abortions and face imprisonment for doing so; and more dangerous for Americans generally, who can no longer hope to meaningfully curb the increase in gun violence now plaguing our nation and whose government will find it ever more difficult to alleviate the climate change that imperils our planet. It is hard to believe that Felix Frankfurter would have been comfortable with such results.

A Brief Note on Culture War Grievances

David Roberts, a sensible person on Twitter, explains the rationale behind right-wing culture war grievances:

Consider the “War on Christmas.” I view it as the paradigmatic right wing culture war grievance, not because it particularly matters or has any grand significance, but because it exposes the basic form that all these grievances take.

Asking everyone in a public role to say “Merry Christmas” is asking everyone to impose and reinforce a particular culture and a particular set of traditions, and thereby exclude others. Saying “happy holidays,” on the other hand, is a neutral, agnostic greeting — it makes room for everyone.

Conservatives specifically object to “happy holidays” because they do not *want* to make room for everyone. They want to exclude! The whole point is to prioritize and elevate a particular culture above others. They do not like or want multiculturalism or pluralism.

This, then, is the basic form of right wing grievance: if we stop imposing a particular dominant culture, and instead allow for more individual choice and variation, we are “attacking” the dominant culture. Attempts at pluralism are framed as an assault on the dominant culture….

The right wants a single narrow culture…. The left wants [or accepts] variation and pluralism.

Reactionary psychology is quite literally unable to process a genuine devotion to pluralism, so it can only interpret these reforms as attacks on its specific culture by some other specific culture (“Marxism” or whatever). They are dominant … or else persecuted. No other option.

Which explains why they said letting different kinds of people get married was an attack on marriage. Someone else suggested that another element of reactionary thinking is zero sum: if something is good for other people, it must be bad for them.

Finally, a personal note on variation and pluralism. If you run a website that requires a working cellphone to get past security, give your users another way to do it, e.g. email. Let a hundred flowers blossom.

The Supreme Court Has Never Been a Level Playing Field

The Constitution deserves less respect. So does the Supreme Court. After reviewing the Court’s history as an impediment to progress, Ian Millhiser of Vox argues that “the judiciary is structurally biased in favor of conservatives:

The Court was the midwife of Jim Crow, the right hand of union busters, the dead hand of the Confederacy, and now is one of the chief architects of America’s democratic decline….

Decisions like Dobbs, which commandeer the bodies of millions of Americans — or decisions dismantling the Voting Rights Act — are entirely consistent with the Court’s history as defender of traditional hierarchies. [Justice Samuel] Alito is not an outlier in the Court’s history. He is quite representative of the justices who came before him.

In offering this critique of the Supreme Court, I will acknowledge that the Court’s history has not been an unbroken string of reactionary decisions dashing the hopes of liberalism. The Court’s marriage equality decision in Obergefell v. Hodges (2015), for example, was a real victory for liberals.

But the Court’s ability to spearhead progressive change that does not, like marriage equality, enjoy broad popular support is quite limited. The seminal work warning of the heavy constraints on the Court’s ability to effect such change is Gerald Rosenberg’s The Hollow Hope, which argues that “courts lack the tools to develop policies and implement decisions [in favor of] significant social reform,” at least when those reforms aren’t also supported by elected officials.

This constraint on the judiciary’s ability to effect progressive change was most apparent in the aftermath of perhaps the Court’s most celebrated decision: Brown v. Board of Education (1954).

Brown triggered “massive resistance” from white supremacists, especially in the Deep South. As Harvard legal historian Michael Klarman has documented, five years after Brown, only 40 of North Carolina’s 300,000 Black students attended an integrated school. Six years after Brown, only 42 of Nashville’s 12,000 Black students were integrated. A decade after Brown, only one in 85 African American students in the South attended an integrated school.

The courts simply lacked the institutional capacity to implement a school desegregation decision that Southern states were determined to resist. Among other things, when a school district refused to integrate, the only way to obtain a court order mandating desegregation was for a Black family to file a lawsuit against it. But terrorist groups like the Ku Klux Klan used the very real threat of violence to ensure few lawsuits were filed.

No one dared to file such a lawsuit seeking to integrate a Mississippi grade school, for example, until 1963.

Much of the South did not really begin to integrate until Congress passed the Civil Rights Act of 1964, which allowed the Justice Department to sue segregated schools, and which allowed federal officials to withhold funding from schools that refused to integrate. Within two years after this act became law, the number of Southern Black students attending integrated schools increased fivefold. By 1973, 90 percent of these students were desegregated.

Rosenberg’s most depressing conclusion is that, while liberal judges are severely constrained in their ability to effect progressive change, reactionary judges have tremendous ability to hold back such change. “Studies of the role of the courts in the late nineteenth and early twentieth centuries,” Rosenberg writes, “ show that courts can effectively block significant social reform.”

And, while such reactionary decisions may eventually fall if there is a sustained political effort to overrule them, this process can take a very long time. Dagenhart [a decision that overruled Congress and allowed products made by child labor to cross statelines] was decided in 1918. The Court did not overrule it, and thus permit Congress to ban child labor, until 1941.

There are several structural reasons courts are a stronger ally for conservative movements than they are for progressive ones. For starters, in most constitutional cases courts only have the power to strike down a law — that is, to destroy an edifice that the legislature has built. The Supreme Court could repeal Obamacare, but it couldn’t have created the Affordable Care Act’s complex array of government-run marketplaces, subsidies, and mandates.

Litigation, in other words, is a far more potent tool in the hands of an anti-governmental movement than it is in the hands of one seeking to build a more robust regulatory and welfare state. It’s hard to cure poverty when your only tool is a bomb.

So, to summarize my argument, the judiciary, for reasons laid out by Rosenberg and others, structurally favors conservatives. People who want to dismantle government programs can accomplish far more, when they control the courts, than people who want to build up those programs. And, as the Court’s history shows, when conservatives do control the Court, they use their power to devastating effect.

This alone is a reason for liberals, small-d democrats, large-D Democrats, and marginalized groups more broadly, to take a more critical eye to the courts. And the judiciary’s structural conservatism is augmented by the fact that, in the United States, institutions like the Electoral College and Senate malapportionment give Republicans a huge leg up in the battle for control of the judiciary.

Simply put, the Supreme Court has not served the American people well. It’s time to start treating it that way.


A similar point can be made regarding the US Senate. Senators who want to leave everything as it is can use the filibuster to kill legislation much more easily than Senators can use it to pass legislation.  

How Democracy May Survive the Constitution

Among our democracy’s enemies, foreign or domestic, is a document ratified in 1789: the United States Constitution. The power the Constitution gives to the states, its provisions that favor minority rule, and the difficulty of amending it may allow the Republican Party to institute authoritarian, one-party rule, all the while claiming to respect “the supreme law of the land”. 

Two law professors, Ryan Doerfler and Samuel Moyn, argue that it’s time to do something about our broken Constitution: 

When liberals lose in the Supreme Court — as they increasingly have over the past half-century — they usually say that the justices got the Constitution wrong. But struggling over the Constitution has proved a dead end. The real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.

The idea of constitutionalism is that there needs to be some higher law that is more difficult to change than the rest of the legal order. Having a constitution is about setting more sacrosanct rules than the ones the legislature can pass day to day. Our Constitution’s guarantee of two senators to each state is an example. And ever since the American founders were forced to add a Bill of Rights to get their handiwork passed, national constitutions have been associated with some set of basic freedoms and values that transient majorities might otherwise trample.

But constitutions — especially the broken one we have now — inevitably orient us to the past and misdirect the present into a dispute over what people agreed on once upon a time, not on what the present and future demand for and from those who live now. This aids the right, which insists on sticking with what it claims to be the original meaning of the past.

Arming for war over the Constitution concedes in advance that the left must translate its politics into something consistent with the past. But liberals have been attempting to reclaim the Constitution for 50 years — with agonizingly little to show for it. It’s time for them to radically alter the basic rules of the game.

In making calls to regain ownership of our founding charter, progressives have disagreed about strategy and tactics more than about this crucial goal. Proposals to increase the number of justices, strip the Supreme Court’s jurisdiction to invalidate federal law or otherwise soften the blow of judicial review frequently come together with the assurance that the problem is not the Constitution; only the Supreme Court’s hijacking of it is. And even when progressives concede that the Constitution is at the root of our situation, typically the call is for some new constitutionalism.

Since the Supreme Court began to drift right in the 1970s, liberals have proposed better ways of reading the Constitution. [Meanwhile,] the conservative Federalist Society engaged in a successful attempt to remake constitutional law by brainstorming ideas, creating networks of potential judges and eventually helping to guide the selection of President D____ T____’s nominees…. With the death of Ruth Bader Ginsburg, the consolidation of right-wing control of constitutional law and the overturning of Roe and other disasters this term — the damage has only worsened.

One reason for these woeful outcomes is that our current Constitution is inadequate, which is why it serves reactionaries so well. Starting with a text that is famously undemocratic, progressives are forced to navigate hard-wired features, like the Electoral College and the Senate, designed as impediments to redistributive change while drawing on much vaguer and more malleable resources like commitments to due process and equal protection — resources that a conservative Supreme Court has used over the years to invalidate things like abortion rights and child labor laws and might use in the coming term to prohibit affirmative action.

Sometimes reclaiming the Constitution is presented as a much-needed step toward empowering the people and their elected representatives. In a new book, the law professors Joseph Fishkin and William Forbath urge progressives to stop treating constitutional law as an “autonomous” domain, “separate from politics.” In contrast with earlier efforts among liberals, which, as Jedediah Purdy put it in a 2018 Times guest essay, put forward a “vivid picture of what judges should do with the power of the courts,” such exercises in progressive constitutionalism call on Congress and other nonjudicial actors to claim some amount of authority to interpret the Constitution for themselves

It is a breath of fresh air to witness progressives offering bold new proposals to reform courts and shift power to elected officials. But even such proposals raise the question: Why justify our politics by the Constitution or by calls for some renovated constitutional tradition? It has exacted a terrible price in distortion and distraction to transform our national life into a contest over reinterpreting our founding charter consistently with what majorities believe now.

No matter how openly political it may purport to be, reclaiming the Constitution remains a kind of anti-politics. It requires the substitution of claims about the best reading of some centuries-old text or about promises said to be already in our traditions for direct arguments about what fairness or justice demands.

It’s difficult to find a constitutional basis for abortion or labor unions in a document written by largely affluent men more than two centuries ago. It would be far better if liberal legislators could simply make a case for abortion and labor rights on their own merits without having to bother with the Constitution.

By leaving democracy hostage to constraints that are harder to change than the rest of the legal order, constitutionalism of any sort demands extraordinary consensus for meaningful progress. It conditions democracy in which majority rule always must matter most on surviving vetoes from powerful minorities that invoke the constitutional past to obstruct a new future.

After failing to get the Constitution interpreted in an egalitarian way for so long, the way to seek real freedom will be to use procedures consistent with popular rule. It will not be easy, but a new way of fighting within American democracy must start with a more open politics of altering our fundamental law, perhaps in the first place by making the Constitution more amendable than it is now.

In a second stage, though, Americans could learn simply to do politics through ordinary statute rather than staging constant wars over who controls the heavy weaponry of constitutional law from the past. If legislatures just passed rules and protected values majorities believe in, the distinction between “higher law” and everyday politics effectively disappears.

One way to get to this more democratic world is to pack the Union with new states. Doing so would allow Americans to then use the formal amendment process to alter the basic rules of the politics and break the false deadlock that the Constitution imposes through the Electoral College and Senate on the country, in which substantial majorities are foiled on issue after issue.

More aggressively, Congress could simply pass a Congress Act, reorganizing our legislature in ways that are more fairly representative of where people actually live and vote, and perhaps even reducing the Senate to a mere “council of revision” (a term Jamelle Bouie used to describe the Canadian Senate), without the power to obstruct laws.

In so doing, Congress would be pretty openly defying the Constitution to get to a more democratic order — and for that reason would need to insulate the law from judicial review. Fundamental values like racial equality or environmental justice would be protected not by law that stands apart from politics but — as they typically are — by ordinary expressions of popular will. And the basic structure of government, like whether to elect the president by majority vote or to limit judges to fixed terms, would be decided by the present electorate, as opposed to one from some foggy past.

A politics of the American future like this would make clear our ability to engage in the constant reinvention of our society under our own power, without the illusion that the past stands in the way.

The Right Wing in a Few Words

Somebody on Twitter, Ethan Grey, who says he’s an ex-Republican, tried to summarize the basic “Republican message on everything of importance”:

1. They can tell people what to do.  2. You cannot tell them what to do.

You’ve watched the Republican Party champion the idea of “freedom” while you have also watched the same party openly assault various freedoms, like the freedom to vote, freedom to choose, freedom to marry who you want and so on.

If this has been a source of confusion, then your assessments of what Republicans mean by “freedom” were likely too generous. Here’s what they mean:

1. The freedom to tell people what to do.  2. Freedom from being told what to do.

When Republicans talk about valuing “freedom”, they’re speaking of it in the sense that only people like them should ultimately possess it.

He cites Covid-19 as a recent example:

We were told by experts in infectious diseases that to control the spread of the pandemic, we had to socially distance, mask, and get vaccinated. So, in a general sense, we were being told what to do. Guess who had a big problem with that.

All Republicans saw were certain people trying to tell them what to do, which was enough of a reason to insist that they would not be told what to do. Even though what they were told to do would save lives, including their own.

Another instance:

They claim to be for “small government”, but that really means government that tells them what to do should be as small as possible. But when [they see] an opportunity to tell people what to do, the government required for that tends to be large.

My favorite example of this is how Republicans hate government spending unless it’s for the “Defense” Department, which gets an enormous percentage of the federal budget and is the part of our government best positioned to forcefully tell other people (i.e. the rest of the world) what to do. But parts of the government that can tell Republicans what to do, like the Internal Revenue Service (pay your taxes) and the Environmental Protection Agency (stop polluting), should be starved of funds whenever possible (or abolished, like the Department of Education).

Maybe a Republican could complain about Democrats in the same way — we want to tell them what to do but we don’t want them telling us — but I’m hard-pressed to think of Democratic behavior that fits.

Anyway, Frank Wilhoit, a classical music composer, once tried to summarize conservatism too. This is sometimes called “Wilhoit’s Law”:

Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

It’s really the same point Mr. Grey made on Twitter. In fact, Grey offered his own, less elegantly stated, version of Wilhoit’s Law further down in his thread:

1. There are “right” human beings and there are “wrong” ones.  2. The “right” ones get to tell the “wrong” ones what to do.  3. The “wrong” ones do not tell the “right” ones what to do.

Thus, we have various ways to summarize what’s been called “the hypocrisy and moral bankruptcy of the modern Republican Party”. Take your pick.