The Supreme Court, Democracy, And Political Change II: Against Unilateral Disarmament

My first objection to Rob Hunter’s recent piece on the Supreme Court was its somewhat unsophisticated assumption of a zero-sum relationship between the Supreme Court and the elected branches. There is, however, an even bigger problem of unsophisticated zero-sum assumptions: namely, an anachronistic, pre-Rights At Work theory of the relationship between litigation and political activism:

The original defenders of judicial review were conservatives who distrusted democracy. Today, the importance of relying on the Supreme Court to act as a brake on democratic politics is an accepted article of faith in liberal political philosophy. Pursuing progressive policy through appellate litigation is central to the strategies of an array of liberal political organizations. Democratic presidential candidates promise to appoint judges who will defend decisions like Roe v. Wade and strike down decisions like Citizens United, but they don’t promise to lead movements to expand and guarantee meaningful access to abortion, or to curb the usurpation of democratic prerogatives by plutocrats and personified corporations. Technocratic liberalism has eclipsed the vistas of deepened democracy and full social freedom that were glimpsed, however dimly, during episodes like Reconstruction and the civil rights movements of the twentieth century.

[…]

There is another approach to constitutional politics, however; one known to the Left: the expression of constituent power. That means articulating grievances, confronting opponents, and promoting solidarity. These forms of politics are constitutive of alternative regimes and counter-institutions, and express the Left’s challenge to ossified constitutional discourses of procedure and formal rights. But so long as liberals remain attached to the Supreme Court’s aura of authority and finality, they will fail to see what political theorist Chantal Mouffe has called “the constitutive character of social division.” Such division and antagonism are central to democracy.

Organizing large coalitions and confronting powerful institutions should be at the forefront of democratic politics — not judicial subtlety and clever interpretations of superannuated texts. Durable abortion rights are more likely to be secured through a broad coalition demanding universal access to single-payer healthcare than through appeals to protect the legacy of Roe. The reform of racist and violent policing through judicial interpretations of the Fourth Amendment is meaningless in the absence of the political will to bring paramilitarized cops to heel. Confronting patterns of gross inequality with respect to gender and sexuality is a project best pursued through intersectional alliances, not disputes over constitutional doctrine.

A few observations:

• All of this is premised on the idea that either progressives must use litigation or mass movement politics, a fatal problem since it’s entirely possible to use both, and indeed it’s entirely possible for the two to constructively work together.  To make this argument in the context of the civil rights movement (which certainly didn’t abjure litigation where it could work) is self-refuting.  The pre-Crenshaw/Williams conception of “ossified” rights discourse is equally anachronistic and useless.
• It’s true that the courts, acting alone, are unlikely to produce major political changes.  But this means less than it seems, since 1)often favorable judicial rulings will have enough political support to be implemented, and 2)in the complete absence of political support no strategy is likely to be effective.
• I haven’t seen the Ben Wittes-style “just let go of Roe and fight for abortion in the legislatures, things will be better” argument in a while, perhaps because it’s so obviously wrong.  The idea that the fate of reproductive freedom should be tied to a particularly difficult political goal, though, is a new (if also self-refuting) twist.
• Bringing single-payer into it is particularly telling, however.  The tendency of the self-consciously antiliberal Hunter’s political imagination to fixate on the bad aspects of judicial review causes them to overlook the much more important protections offered to the status quo by veto points like bicameralism and the gross malapportionment of the Senate.  The procedural barriers in Article I and II are far, far more important barriers to single-payer than Article III courts, and (with the exception-that-proves-the-rule of the abolition of slavery) this is why the elimination of the national health insurance industry would be unprecedented.  This doesn’t mean that the goal should be abandoned — in the long run, you never know what might be possible.  Buzzwords like “intersectional alliances” and “promoting solidarity” in this context throw up a fog that obscure barriers to transformative political change that it’s important to be clear-eyed about.

Would American politics be better without judicial review? Possibly!  But it’s there; as long as it is, there’s no reason not to use litigation in contexts where it could work.  The cards will almost always be stacked against progressive change, no matter how much change is demanded or how many alliances form.  To leave tools that can sometimes work in the toolbox is a terrible idea.  There’s nothing emancipatory about telling women and gays and lesbians that they should wait for the Single Payer and Many Other Ponies Act Of Sometime After We’re All Dead Act to pass instead of using strategies that can achieve important goals in the shorter term.