Damage Control in the Roberts Era
Damage Control in the Roberts Era
Progressive activists face an increasingly hostile legal environment. What strategies can they pursue?
In 1890 Louisiana’s legislature passed the Separate Car Act, which required racial segregation on trains in the state. In response, New Orleans residents formed the Citizens’ Committee, a multiracial coalition, to work toward repealing the statute. The committee eventually turned to the courts. In June 1892 it got Homer Plessy, classified by the state as Black, to attempt to sit in the “white” section of a train. He was arrested and then defended himself against the charge by arguing that the statute violated the U.S. Constitution. When the case reached the Supreme Court in 1896, seven of the justices rejected Plessy’s defense. The decision, Plessy v. Ferguson, provided the legal foundation for Jim Crow laws mandating racial separation in essentially all areas of social life. Plessy paid a $25 fine—in 2022 Louisiana’s governor finally pardoned him—and the Citizens’ Committee was disbanded. Notably, no one seems to have attacked the committee for bringing the case in the first place.
Contrast that with the reaction to the Supreme Court’s recent decision in United States v. Skrmetti, where the court refused to strike down a 2023 Tennessee statute prohibiting the delivery of gender-affirming care to minors whose parents and doctors believed such care to be medically appropriate. Progressives, of course, criticized the decision, but some also criticized the American Civil Liberties Union for bringing the case. Doing so was premature, critics said. The legal groundwork for a challenge hadn’t been laid in other cases involving less contentious restrictions on the rights of transgender people. Additionally, movies and TV shows hadn’t yet laid the cultural groundwork for accepting trans people, as happened with gays and lesbians (well-known in the legal literature as the Will & Grace effect). The result was disastrous, a setback to the possibility of incrementally building legal doctrines that might protect trans people. Far better than litigation, according to these critics, would have been political mobilization against the adoption of anti-transgender laws, public education campaigns about trans people’s lives, and support for transgender minors to get gender-affirming medical care in states without restrictive laws.
Pretty much the same criticisms could have been made against the Citizens’ Committee. The reason they weren’t made in 1896 is that the ecosystem of progressive political and legal activism is much more extensive today than it was then. The existence of that ecosystem, however, should lead us to a different way of thinking about how progressive activists should respond to courts that will likely be, at best, only mildly supportive of even modest progressive initiatives, and at worst actively hostile.
Critics of the decision to bring Skrmetti have an entirely defensible view of the best legal strategy for advancing the rights of trans people: mobilize politically, don’t count on the courts. They have a related and equally defensible view of what a truly democratic progressive politics looks like: mobilize politically, don’t even try to use the courts. I agree in large measure with that view of democracy, and hope that it comes to play a larger role in our politics.
Yet even if the role of litigation in progressive activism shrinks, it’s not going away. The country is simply too big, and legal activists too many in number, for advocates of staying out of court to win a decisive victory. And sometimes cases arise of such gross injustice that the impulse to sue is—and should be—irresistible. Kilmar Ábrego García’s case is currently the best-known example, but advocates for all sorts of progressive causes will find many more—and by their lights they shouldn’t resist the impulse to sue either.
What if instead of don’t sue, the correct approach is if you sue, be careful? Duncan Hosie of Stanford Law School recently recommended that strategy under the label “resistance through restraint.” He offered five principles to guide litigators: (1) evade Supreme Court review by “procedural maneuvering and strategic settlement”; (2) don’t appeal losses; (3) delay “seemingly inevitable rulings” to allow time for political mobilization; (4) bring cases where you might win, to build favorable doctrine step by step, and hope that the other side doesn’t appeal; and (5) try to narrow your losses.
These seem like sensible recommendations, too, but again they run up against the complexity of the ecosystem. There is no supreme allied commander to keep legal activists in line. Even when there were figures who almost fit that role—like Thurgood Marshall or Ruth Bader Ginsburg—they couldn’t keep complete control over progressive legal activism for racial and gender equality, respectively. When forced by local activists to support a constitutional challenge to private agreements not to sell homes to Black buyers, Marshall held his nose. A decade later he thought that student activists conducting sit-ins and other forms of direct action in the late 1950s and early 1960s probably could be punished without violating the Constitution and only reluctantly agreed to let his colleagues represent some of the students. (Though the full story’s too complicated to tell here, the Supreme Court came within inches of proving him right.) Ginsburg structured her legal challenges to gender discrimination around one of the less radical theories of why and how such discrimination violated the Constitution. Other feminist litigators pursued different theories less successfully, leaving the state of the law more conservative than many feminists desired.
So what can progressive legal activists do in today’s anti-progressive (to put it mildly) legal environment? One answer comes from the folk singer Arlo Guthrie, who likes to tell the story of a mama rabbit and a papa rabbit being pursued by a pack of dogs, who find refuge in a hollow log. With the dogs baying at both ends, one rabbit says to the other, “What do we do now?” The answer: “Stay here until we outnumber them.” That strategy doesn’t tell you much about what to do today. It’s more of a recommendation to wait until you’re strong enough to emerge from the log and overwhelm the opposition—that is, when you’re able to take over the courts.
The most prominent idea in this vein is court reform. And, for reasons scholars and activists have detailed, the most promising form that takes is unpacking the Supreme Court. I use that term deliberately: Trump packed the court, with Mitch McConnell’s connivance, by breaching settled understandings about when a president should have the opportunity to fill a court vacancy. What we need to do now is unpack the Court: overcome the partisan imbalance on the Court that Trump and McConnell created.
Beyond that, damaging cases like Skrmetti must eventually be overruled. In the first years of the first Trump administration, progressive legal scholars toyed with the idea of developing a “jurisprudence of overruling” that would keep Trump’s Supreme Court from getting rid of progressive precedents too often. For example, with Roe v. Wade at the forefront of their thinking, they argued that progressive decisions that had become deeply embedded in the culture shouldn’t be overruled, citing a decision by Chief Justice William Rehnquist refusing to overrule Miranda v. Arizona. It turned out that conservative justices were happy to enact a much cruder jurisprudence of overruling, which amounts to, We can overrule decisions that we think are wrong—full stop. Progressive justices should probably adopt the same position.
What else can progressive legal activists do “until we outnumber them”? Perhaps we can do some public education about what bad precedents really mean. Hosie’s more academic version of “try to narrow your losses” is avoid “the jurispathic power of paradigmatic adjudications that can kill competing constitutional visions.” In lay terms, that means explaining why Skrmetti, though terrible, needn’t be as devastating to a vision of transgender equality as it might seem.
This is because precedents mean what later courts take them to mean. Chief Justice Roberts’s opinion in Skrmetti made a great deal of the fact that the legislation involved regulation of a medical procedure. Indeed, on one reading its central argument was that the statute didn’t discriminate on the basis of sex precisely because it involved a medical procedure. (I confess to finding almost unintelligible the “because” in that sentence.) Other anti-trans statutes, like “bathroom bills” or directives about which events trans athletes can compete in, don’t have the same medical overtones. A court so inclined could readily say that Skrmetti doesn’t articulate a comprehensive anti-trans constitutional vision.
Another possibility is to deploy strategies associated with what Yale law professor Douglas NeJaime calls “winning through losing.” Sometimes a loss in court can be used to mobilize the losers’ supporters and to persuade previously indifferent voters that the decision was deeply unfair. NeJaime thinks that the conditions for winning by losing weren’t in place when Skrmetti was brought—another example of the “no supreme allied commander” problem—and now, with the case on the books, activists have to figure out if they can convert the loss into a win.
The Supreme Court will hear a couple of trans sports cases when it reconvenes in the fall. I expect that the majority, uninclined to confine Skrmetti, will find those bans lawful as well. And that brings us back to the “until we outnumber them” strategy.
Until we outnumber them, we can build progressive constitutional visions in the interstices of the doctrinal structure created by the MAGA Court. The current court is fond of relying on “history and tradition” to limit government power, but there’s also a history and tradition of using government power for progressive ends. Given the chance, we can also offer dramatically different doctrinal structures—visions of racial equality that Justices Sonia Sotomayor and Ketanji Brown Jackson have offered in their dissents in affirmative action cases, for example. This holds for all the bad things the MAGA Supreme Court has done—including restricting women’s right to control their bodies and impairing our ability to live free from fear of gun violence—and will do.
Mark Tushnet is the William Nelson Cromwell Professor of Law emeritus at Harvard Law School.
