Without fundamental judicial reform, progressive politics in the USA are a series of dead ends

A friend of mine who is an immigration lawyer in DC puts it this way:

We’ve lost any ability to legislate meaningful gun reform. That battle is over . . .

First, we have a judiciary that venerates gun rights, and any meaningful gun control legislation cannot survive judicial scrutiny. The same way any fixes to voting rights legislation won’t survive judicial scrutiny. Expanding healthcare access won’t survive. Giving workers more rights against their employers, or consumers having more rights against corporations won’t survive. Legislating abortion rights won’t survive. Immigration reform won’t survive.

We need judiciary reform. Period full stop. None of the policies that Democrats (and frankly a majority of this country) support can survive judicial scrutiny when our judiciary is stacked with FedSoc rubes. Expand the Supreme Court, yes. Also how about we *double* the size of the federal judiciary in total. Term limits, binding and enforceable rules of ethical standards for SCOTUS, and limiting the reach of nationwide injunctions … all good ideas and should be enacted. If Democrats find themselves in a rare situation where they have unified control and are not beholden to fools like Kyrsten Sinema, they have to address the judiciary. Otherwise, literally none of their legislative priorities will survive judicial scrutiny. After judiciary reform, the next legislative priority should be campaign finance reform. Only once you’ve dealt with those two issues can you make meaningful legislative changes to help people. Without those, your John Lewis Voting Rights Act, your Protecting Reproductive Health Act, your Same Sex Marriage Act, your Assault Rifle Ban, your Comprehensive Immigration Reform Act … none of them survive.

The argument against judiciary reform from the left usually goes something like “if we escalate by doing that, then what stops the right from doing so again when they have the chance.” That argument grates my nerves. That’s like saying if someone punches you in the face, you shouldn’t punch back because then you’re escalating a situation and what happens when the other guy punches you back again? Really? It doesn’t take a genius to figure out the problem with that argument. We should NEVER make political decisions premised on “but then what will the right wing do in response?” Because they will always do what is awful regardless what Democrats do. At some point you have to get in the fight, not avoid it. I don’t have ANY confidence in the legacy Dems to join the fight, but hopefully there’s a generation of Democrats coming up who see reality for what it is and will join the fight.

I think this is right, and in particular it’s correct in diagnosing a big part of the problem as being the unwillingness of the Democratic party leadership, starting with Joe Biden but going far beyond him — he merely reflects the consensus in this regard — to face up to the facts, in regard to the federal judiciary having been taken over by radical reactionaries, via an incredibly successful multi-generational campaign, institutionally centered in the Federalist Society.

I have no illusions about how difficult it will be to enact any significant reform, given the structural barriers to doing so, but the necessity of undertaking it and seeing it through isn’t made any less pressing by that difficulty.

On a closely related topic, it would help if putatively left or leftish law professors — a distinct minority of all law professors, despite what the lunatics on the right claim — weren’t so enamored of The Majesty of the Rule of Law as a Neutral Arbiter of Fundamental Political Conflict. I see this kind of thing all the time in for example cries of outrage regarding the overruling of Roe as an offense to rule of law values (50 years of precedent ignored! etc. etc.).

Roe was an act of judicial quasi-legislation — nobody had ever even suggested that there was a constitutional right to abortion until about five years earlier — that can and should be defended on those grounds, not on phony formalist arguments for its correctness that were always ridiculously weak. This is because federal courts are inevitably political actors, just as the legislative and executive branches are, although in a complex way that is necessarily different from the way the so-called “political branches” [sic] operate.

To illustrate, I’ll play the favorite law professor fantasy game of If I Were On the Supreme Court. If I were on the Supreme Court, would I hold that the Senate had become an unconstitutional institution, because of its increasingly radically anti-democratic character? (At the founding the biggest population differential between states was 12 to 1. Now it’s close to 70 to 1). No I would not — but not because such a holding would be “wrong” as a matter of constitutional law, but because I couldn’t get away with it, i.e., I couldn’t possibly get five votes for that position, in part because the Supreme Court’s members, no matter what their politics might be, understand on some level that they can’t do things that the other branches of government would refuse to comply with, and at this time ruling the Senate unconstitutional would be one of those things (It might not be in another 20 or 40 years though: stayed tuned!).

But that is the only thing that would be wrong with that ruling: that it wouldn’t be enforceable as a matter of practical political reality. Eliminating the Senate is something that just about every progressive in this country agrees would be a good thing, which means in my view that it would be a good thing for the federal courts to get rid of it, if it were possible to do it that way. Which again at the moment it certainly isn’t, but it could become possible, just as it became possible to get rid of unjust abortion laws via the judiciary, which is another reform which had been quite literally unimaginable just a few years earlier.

Until the Democratic party gets as serious as the Republican party has about using the judiciary to enact its political programs then it will be operating at a massive structural disadvantage in the game of law and politics. Yet as of now the Democrats won’t even get serious about stopping the judiciary from blocking its legislative and executive actions, let alone using it to do something positive.

Progress in this regard turns in big part on understanding how dire the situation has become. If Dobbs didn’t drive that home with sufficient urgency, it’s hard to imagine what would. The judicial coronation of Donald Trump, via the Independent State Legislature doctrine? I suppose that might do it, and we may well get the chance to find out.