Gordon-Reed:
Well, another of my colleagues, Niko Bowie and Daphna Renan, have written an article that is just coming out, I think it’s in the Harvard Law Review. It explains how Democrats have come to see the Supreme Court over the years as a friend because of the sort of iconic cases that have helped shaped postwar liberal policy. And they point out, rightly so, the Supreme Court has been never a friend to really advancing rights. I mean, people look at the Warren Court, and they look at a couple of decisions—they look at Brown v. Board of Education, and it was a big encroachment for Southern whites. But even so, they got around that. Or you look at decisions like Gideon v. Wainwright, bolstering procedure for accused criminals. But Terry v. Ohio, which upheld stop-and-frisk searches as constitutional, is also a Warren Court opinion. The same is true for Terry v. Ohio, which allows you to search for mere evidence in a blanket fashion, as opposed to just contraband.
I mean, these were two hugely expansive vindications of the power of the police in the Warren Court. And so focusing in on the presidency, and by extension the Supreme Court—the presidency being important because of the Supreme Court—became a Democratic mantra. But the rest of it is just not important. And we see what that has brought.
Lehmann:
We’re now living through that. And again, there’s another great book called The Anti-Oligarchy Constitution, which supplies a sweeping history of the entire track record of the high court. And it makes a point that the [anti-union] Lochner decision was actually the kind of high water mark of the reactionary high court as it was envisioned. As you’re saying, these handful of Warren decisions became very mistakenly, and I think disastrously, bound up with this image of the court as somehow liberal.
Gordon-Reed:
Or as something that’s going to save us.
Lehmann:
Right—it’s going to be our last resort, the last bulwark. And again, I’m a simple person, I just think popular government needs to be close to the people, it needs to be accountable on a more frequent basis. That’s why Congress is just not negotiable if you’re thinking of long-term, small-D democratic strategy. So now it feels like the Democrats’ best hope in this midterm cycle is narrowly expanding their Senate majority because in Georgia and Pennsylvania, the Republicans have nominated lunatics. I mean, you can count on that to a certain degree, but it doesn’t help if that’s your strategy.