Justice / Argument

Progressives and the Court

A response to Samuel Moyn’s “Resisting the Juristocracy.”

by Andy Seal via U.S. Intellectual History Blog on October 8, 2018

Justice Oliver Wendell Holmes Jr., circa 1924.

Library of Congress

There’s an old saying among lawyers: When you have the facts on your side, pound on the facts. When you have the law on your side, pound on the law. When you have neither, pound on the table.

At first glance, that seems to be Samuel Moyn’s counsel in a widely shared Boston Review essay, “Resisting the Juristocracy.” “In the face of a solid conservative majority for years to come,” what are progressives to do? Looking for help from Chief Justice John Roberts as the new “swing” vote, Moyn reasonably concludes, is hopeless. There is little more reason for optimism in fanciful plans to pack the Court or impeach Kavanaugh. The problem is not the personnel who comprise the Court, Moyn argues; the problem is that we have “a cult of the higher judiciary,” a cult that progressives themselves have done much—even more than conservatives—to enshrine and insulate from democratic politics.

Robbed of the power to shuffle the composition of the Court, in other words, progressives need to de-consecrate the Supreme Court, to shift power back towards legislative bodies. Here is, I think, the key paragraph outlining his argument for a future progressive strategy:

In the face of an enemy Supreme Court, the only option is for progressives to begin work on a long-term plan to recast the role of fundamental law in our society for the sake of majority rule—disempowering the courts and angling, when they can, to redo our undemocratic constitution itself. This will require taking a few pages from the conservative playbook of the last generation. It is conservatives who stole the originally progressive talking point that we are experiencing “government by judiciary.” It is conservatives who convinced wide swathes of the American people that it is the left, not the right, that too routinely uses constitutional law to enact its policy preferences, no matter what the text says. The truth is the reverse, and progressives need to take back the charge they lost. To do so, they need to abandon their routine temptation to collude with the higher judiciary opportunistically. Progressives must embrace democracy and its risks if they want to avoid the stigma of judicial activism that still haunts them from the past.

As advice, that seems to me sound. But as history, Moyn’s account of why progressives find themselves in this predicament is only half-accurate, and its inaccuracy may have serious and harmful consequences for the way progressives strategize and for the way all parties understand the Supreme Court’s place in American life.

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