The Future of the Supreme Court in the Liberal Imagination

Imagine you’re a law student today—remembering how Gorsuch was appointed for a seat that should have gone to Merrick Garland; thinking about how Kavanaugh was appointed despite the obvious truth of Christine Blasey Ford’s claims about his attempted assault on her; and anticipating the very real possibility that Trump may get yet a third appointment to replace Ginsburg.

The Supreme Court of your future will consist of a six-person right-wing majority.

Two justices of that majority will forever have the stench of credible charges of sexual assault or sexual harassment hanging over them.

Four justices of that majority will forever be the appointees of presidents who didn’t win the popular vote (or five justices

if you throw in Alito, who was appointed in Bush’s second term, which Bush did win with the popular vote but wouldn’t have won had he not won the electoral vote, with the help of a conservative Supreme Court, in 2000).

Three justices of that majority will forever be the appointees of a president whose victory, many in elite liberal circles of the law believe, was secured with the illegal collusion of Vladmir Putin.

Put that all together and it’s hard for me to see how the law students and budding law professors of this generation aren’t going to view the Supreme Court and the enterprise of constitutional law with a skepticism so jaundiced, it will make the arguments of Critical Legal Studies and Critical Race Theory seem like Thomistic natural law.

An interesting historical parallel arises.

Imagine you’re a progressive law student coming of age between the 1910s and the 1930s. You’re a student of someone like Felix Frankfurter or his ilk, politicized by the labor movement, the Socialist Party, or the Depression to join various radical causes.

You’ve read a lot of legal realism. You come to a view of the Court as not a source of legitimacy but as the bastion of the American ruling class, forever enforcing the dictates and injunctions of capital. And you start casting about for a legal philosophy or theory that would not empower that Court but defang, even strangle, it.

I have to believe we’re in for some version of this from the legal left in the next decade or two: not an effort to rehabilitate the law in more progressive directions but an effort to systematically delegitimize the law and the Court, recognizing to some degree that that has already been accomplished by Mitch McConnell, Donald Trump, and the right.

It’ll be interesting to watch.


  1. Benjamin David Steele January 19, 2019 at 11:59 am | #

    We’ve had a failed system for at least decades. Only when enough people realize this, only when those seeking reform realize that change can’t happen within the system, then and only then will real and meaningful change happen. Not any sooner.

    This is a wake-up call for a bad situation that should have been taken seriously back when the right-wing shift began. There are many points one can begin to see the shift. Even with FDR, the most union-busting president in history, corporatism began to take hold as a central pillar of the New Deal:

    Later under the Jimmy Carter administration. Many people forget how President Carter introduced evangelical religion into the Federal government, was unfriendly to labor unions, pushed austerity for the masses, and originated Reaganomics before Reagan. The Democratic Party was becoming something else, embracing the corporatism while jettisoning the social democracy.

    Clinton triangulation then more fully established the right-wing agenda: corporate and banking deregulation, racialized war on drugs, mass incarceration, privatized prisons, etc. This pushed the Overton window further right than the GOP was earlier in the century, such as President Eisenhower. The GOP then took advantage of this. But it required decades of lesser evil voting by Democrats to make the right-wing takeover possible.

    So here we are. The inevitable results of a long history of bipartisan complicity. And yet collective amnesia continues, which brings me to a piece I wrote in response to Robin’s view from earlier last year:

    In that post, I quote from this article by Robin:
    He writes that, “You get to lose your innocence only once… But… American liberalism is also a party of the born-again.” They are always the innocent, again and again and again. And it is they, more than anyone, who normalizes the degradation of society. Forever shifting the blame elsewhere. Still now the corporate Democrats punch left, ever fearing that real change might happen.

  2. Joseph Goffman January 19, 2019 at 12:50 pm | #

    Turning to decisons made on the merits, a study of the Court’s recent (2015-2016) actions in the area of environmental law — wounding power plant mercury regulations, staying the Clean Power Plan, trimming the scope of the Clean Air Act’s coverage of greenhouse gas pollution — as well as Kavanaugh’s DC Circuit Court opinions on the Obama EPA’s Clean Air Act rulemakings — invalidating curbs on HFCs and on pollution transported over long distances — would have the same effect or lead to the same conclusions. In each case, Kavanaugh or the SCOTUS majority subverted the logic of the Clean Air Act, which is inherently progressive, explicitly harnessed as it is to continual advances in science and technology for the purposes of aligning increasing protection of the public’s health from pollution generated by economic activity with those advances. Professor Lisa Heinzerling of Georgetown Law School in her “The Power Canons” (William and Mary Law Review and SSRN) has a great discussion of how the Court has invented on-the-spot doctrines to negate that “progressive” logic. Now, look ahead to, say, the Green New Deal legislation. Almost inevitably, Congress will end up relying on empowering regulatory agencies like the EPA to deliver at least part of the solution. If so, it will probably re-create the logic of the Clean Air Act, counting on the “progressive” character of advances in science and technology to drive increasing improvements. The SCOTUS majority, however, already may have put in place the regressive jurisprudence that would defeat the intended climate change policy outcomes and at least in part override the intended effect of legislation.

  3. kimmitt2017 January 19, 2019 at 2:42 pm | #

    I hope you’re right; what I have seen so far is a bunch of people who’ve been brought up to enable abuse but pretend to fight against it continue to enable abuse while pretending to fight against it.

  4. Chris Morlock January 19, 2019 at 4:50 pm | #

    I think it’s largely a series of false equivalencies. No “Liberal Democrat” has particularly chosen a particularly pro labor justice for quite some time now, and Clinton would not have done any better. Garland’s image as some find of leftist justice, rehabilitated during the anti-Trump era, is about as genuine as most of Obama’s true policies. He was just as pro-corporate.

    Sotomayor appears as a centrist on most charts I have seen. She is no Douglas, Black, Goldberg, Or Fortas. The fact that, in the anti-Trump era, she has been lauded as a Liberal justice speaks volumes.

    Ginsburg is almost the same as Sotomayor, sorry.

    So the “Left” and the Dems slowly lost control over the courts during the same period that corporate ideology permeated them. That sounds absolutely logical to me. It’s been over 50 years now since there was anything approaching an actual Liberal justice, and acting now like Gorsuch and Kavanugh are the end of the world is border-lining on misrepresentation.

    Why pretend that this is the triumph of the Right when it’s clearly related to the ideological and political failure of the Left?

  5. Tom Shapiro January 19, 2019 at 5:57 pm | #

    Do you argue that since all supreme court justices, are human and all humans have political prejudices we should abandon the absurd fantasy that all judges are unprejudiced umpires who are indifferent to the legal position of the litigants? They are simply instruments of whichever political philosophy and president got them appointed.
    If that is your claim,bthen you would prefer that Supreme court judges should campaign for office, be elected, and serve limited terms. If the court of politicians resulting from this ultimate politicization were to end up 9 Republicans and 0 Democrats or vice versa at least it would be the overt will of the majority.
    I personally would run in horror from such a system. Where is the evidence that an electoral majority has the Solomonic wisdom to understand how to choose from competing truths in a close constitutional question. Where is the evidence that states like California and Texas that elect and can recall their Supreme Court judges are better served than the current method of appointing Supreme Court justices defined in the constitution that serves us.
    Jackson,Lincoln,FDR, and Nixon were burdened with Supreme Courts that opposed them. Yet these presidents all were elected to a second term without radically altering the court’s imperfect independence from party politics. Jackson refused to honor a court decision on the Cherokee tribe as a sovereign nation. Lincoln persuaded congress to increase the number of justices to give him a majority during the Civil war. FDR failed to persuade congress to pack the court in order to preserve the New Deal, and Nixon of course resigned when the court refused to protect his tapes from expisure by approving a claim of executive privilege.
    Clearly, justices do not check their personal politics at the court house door. Yet, with the arguable exception of Bush v. Gore and Senator McConnell’s refusal to consder Obama’s nominee, judge Garland , the nomination and performance of the justices over 230 years has functioned pretty well. The nation has survived awful decisions which in time were overturned. Trump, however awful he is, is no reason to change the rules. What goes around, comes around.

  6. trevorlatimer January 20, 2019 at 12:04 pm | #

    Court packing?

  7. Zach January 22, 2019 at 10:25 am | #

    End Judicial Review. There is no reason to believe the SCOTUS has the divine right to interpret the constitution.

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