SCOTUS Hasn't Always Been the Final Arbiter; Liberals Should Stop Thinking it IsRoundup
tags: Constitution, civil rights, abortion, Supreme Court, Judicial Review
Joseph Fishkin is professor of law at UCLA and co-author of The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy.
William E. Forbath holds the Lloyd M. Bentsen Chair in law at the UT Austin School of Law and is co-author of The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy.
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.”
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