How to Confront the Courts

How to Confront the Courts

Trump has faithfully carried out a conservative remaking of the federal courts. Progressives need a strategy not just to win elections, but to overcome judicial challenges to popular policy.

Protests against Brett Kavanaugh in October 2018 (Drew Angerer/Getty Images)

In recent weeks, Democratic presidential candidates have begun to announce a number of ambitious policy proposals. Some of these policies—on higher education, healthcare, taxation, and climate change—represent significant breaks with the status quo. For many Americans, hearing ideas like these after two years of President Trump is a breath of fresh air. Progressive politics seem energized by a sense that genuinely transformative policy may suddenly be politically viable.

Yet these candidates, if they win the election, will also have to confront the legacy of the Trump presidency. As Jedediah Purdy recently observed, the White House and its allies across government are busy dealing with Republicans’ growing difficulty winning fair elections. From trying to rig the census to abetting state-level disenfranchisement, Trump has presided over an effort to entrench minority rule. In this vein, one of Trump’s most enduring consequences will be the mark he leaves on the federal judiciary.

In session after session, the Republican-controlled Senate has approved Trump’s judicial appointees—more than eighty of them in the first half of his term alone. Before they were appointed, almost all of these judges were anointed by the Federalist Society—the conservative organization that for decades has plotted a conservative remaking of the judiciary, and found a standard-bearer in a political newcomer who had much to prove to old-fashioned Republican donors.

At the pinnacle of the federal judiciary looms Donald Trump’s Supreme Court. Even before Trump, the Court had hardly been friendly to progressive causes. Today, it seems prepared to open new attacks on affirmative action, gun control, women’s rights, campaign finance, environmental regulation, and the separation of church and state. Progressive legal outfits across the country are bracing to defend policy and law that took generations of work to enact.

Whomever Americans elect in 2020, the Supreme Court stands ready to supervise their governance. If Democrats control the White House and Congress, the Court is all but guaranteed to hear constitutional challenges to their major legislative achievements. Indeed, Democrats’ policy proposals—most notably Senator Elizabeth Warren’s proposed tax on wealth—are already drawing constitutional scrutiny.

It’s important to ask whether candidates’ flagship economic policies are constitutional. But when constitutionality is adjudicated by a hostile Court, progressives who only hunt for tenable legal arguments risk missing a key point. A direct confrontation with the Supreme Court isn’t necessarily a problem. In fact, at a time of unprecedented conservative judicial power, it may be exactly what Democrats need.

Proposals like Warren’s wealth tax aren’t important just for their practical or pragmatic political features, but also because they invite people to claim ownership of the Constitution, and to insist that the Court, dominated by judges whose careers have been built on hand-wringing about judicial restraint, respect the voice of the public and their representatives. In a moment when the meaning of the Constitution is subject to political contestation, bold economic ideas aren’t just promising policy—they’re constitutional grand strategy.

One model for this kind of grand strategy comes from an era strikingly similar to our own—and from the case today’s Supreme Court would look to if it were to rule on a wealth tax. In 1894, just after a pair of financial crises, a group of progressive advocates convinced Congress to pass a federal income tax—designed, just like many of the Democrats’ contemporary proposals, to stem a rising tide of inequality. The income tax drew constitutional scrutiny, and in 1895, in Pollock v. Farmers’ Loan & Trust Co., the Supreme Court shocked the nation by overruling 100 years of precedent to declare that the income tax was unconstitutional.

Plenty of people have been talking about Pollock since Warren proposed a wealth tax, and for good reason: if the Supreme Court were to strike down such a tax, it would almost certainly build its opinion around Chief Justice Melville Fuller’s decision in Pollock. But focusing on the Court’s logic in Pollock misses the forest for the trees. The significance of the decision, and the broader fight over the income tax, has less to do with what happened on the Court than what happened outside it.

The fight over the income tax opened the door for progressive Americans to challenge the supremacy of the Supreme Court. Why, they wondered, should unelected judges be able to nullify broadly popular legislation? Wrote one populist newspaper, “in this country there is one law for the rich, and another for the poor.” The governor of Oregon, Sylvester Pennoyer, held forth in the prestigious American Law Review with a lengthy rebuke of the very principle of judicial review articulated in Marbury v. Madison.

It was a “moment of raging class war,” Yale Law professor Bruce Ackerman wrote—and the Court had announced it was on the side of the upper class. In the fourteen years following Pollock, populists repeatedly drew up plans to challenge the Court head-on. They debated simply passing a new income tax, daring the Court to strike it down again in the face of massive popular resistance. The Democratic Party even hinted it was willing to use Congress’s power to change the make-up of the Court—removing or appointing justices to guarantee a sympathetic opinion.

Ultimately, the movement for an income tax produced the Sixteenth Amendment, which changed the language of the Constitution and gave the Court a graceful way to fold. The agreeable outcome obscures the scale of the progressive achievement. In the years following Pollock, populist outcry forced the Supreme Court to tread lightly on other popular economic measures—including backing off on the Pollock decision, without explicitly overruling it, in several subsequent cases.

The Court may have avoided an outright battle with Congress, but it had nonetheless been forced to recognize its limitation in the face of concerted public rebuke. Supreme Court justices knew the damage that had been done. In a letter to his sons, Justice John Harlan, who dissented in Pollock, called it “a decision [that] will become as hateful with the American people as the Dred Scott case was when it was decided.” President William Howard Taft proclaimed in 1909 that “nothing had ever injured the prestige of the Supreme Court more” than Pollock.

Thirty years later, when the Supreme Court famously caved under President Franklin D. Roosevelt’s threat to “pack the Court” with allied judges, tacticians in the White House, Congress, and on the Court surely had the example of Pollock in mind. The chief justice at the time, Charles E. Hughes, had published a book just a few years earlier in which he argued that Pollock was one of “three notable instances” in which the Supreme Court “suffered severely from self-inflicted wounds.”

Today’s Supreme Court is arguably more of a threat to progressive legislation than any Court since the New Deal. If anyone doubted where the Court now stands, or whether it will give a fair hearing to Democratic policy, they need only watch Justice Brett Kavanaugh’s unprecedentedly partisan statements before the Senate Judiciary Committee.

But this moment is the culmination of decades of conservative efforts; Republicans have been working to solidify the ideological capture of the federal judiciary since the Reagan administration. In obscure but vital decisions on procedure, the Court has made it harder for plaintiffs to bring cases against the powerful. It has twisted the First Amendment to sharply limit the government’s ability to restrict corporate power. It has constitutionalized the small-government politics of the Republican Party by restraining Congress with a restricted view of the Commerce Clause, and by challenging the legitimacy of federal agencies. And although the Obergefell decision represents a joyful victory for LGBTQ rights, the courts have slowly been curtailing Fourteenth Amendment rights, too—even if Roe v. Wade still formally survives.

Republicans have built a constituency around the project of overhauling the courts. At the center of this constituency are evangelical voters, whose determination to overturn Roe has shaped them into a virtually single-issue bloc. But if the conservative judicial movement had its origins in the politics of abortion, it has since gone mainstream within the Republican Party. Promises to prevent “judicial activism” have become a permanent part of the Republican platform. In the turmoil of 2016, conservative leaders again and again justified their support of Trump by pointing to his promise to back their ideological program for the judiciary.

Democrats need a strategy to confront this Court, and to disarm the political coalition that built it. And they know it. After Kavanaugh accused Democrats of orchestrating a smear campaign to destroy his nomination, and was briskly confirmed anyway, some on the left began to discuss what it might look like to pack the Court in 2020 or thereafter. Such conversations have slowly grown in volume.

But the history of the income tax teaches that court-packing is a tactic, not a strategy. To reshape the Court, or bend its jurisprudence, Congress should make an argument to a public mobilized around a specific harm the Court has done—around an impingement on their ability to self-govern. There are many ways to convince five justices that progressive legislation is a lesser evil than a full-blown constitutional crisis. Almost all of them run through the American people. And transformative economic policy has been a reliable way to rally people to your cause.

The Court is not immune to popular reproach. Popular movements in the 1890s assumed that the justices were out-of-touch elites interested in maintaining the Gilded Age status quo. South Carolina Governor Benjamin Tillman spoke for many when in 1894 he decried “the unholy marriage between the ‘dignity’ of the Federal Court [and] harlot corporations.” Today, by contrast, certain members of the Court are well-liked by large segments of the public—Ruth Bader Ginsberg has become a pop-culture liberal hero, while for years Conservatives rallied behind Antonin Scalia’s provocative persona.

All the more reason for today’s progressives to take their forebearers’ strategies seriously. Progressives of an earlier era didn’t mount their challenges to the Court by focusing on the justices’ contempt for ordinary people. Rather, progressives connected that contempt to a recognition of the Court’s actual refusal to side with the people on redistributive economic policy. Even today, when Justice Kavanaugh has rightly sparked widespread anger on the left, Americans only disapprove of him by about five to four. They approve of a wealth tax by a much higher ratio—three to one. It’s no accident that Republican messaging to voters about the courts has always leaned on social issues; working-class people don’t vote for binding arbitration and protecting monopolies. Instead, progressive economic policy reliably fractures the Republican coalition. Sixty-nine percent of white, working-class voters support paid family leave, 74 percent support higher taxes on the wealthy, and 83 percent support government-provided healthcare. Were the Court to stand in the way of such policies, it could incur the sort of deep popular resentment on which broad-based movements can build. If Democrats want to build such a movement to challenge the Court, they will need Congress to force the Court’s hand.

Under attack from a mobilized popular movement, the Court will often prefer to step back than risk its institutional legitimacy. In a seminal 1999 article, Bruce Ackerman argues that such a “high-visibility retreat under fire” is exactly what the populists demanded from the Court when they prevailed on Congress not to amend the Constitution, but simply to pass another income tax. The outcomes in several subsequent cases bespeak a Court concerned with maintaining its image as an equanimous body. Much more famous was the Court’s decision in West Coast Hotel v. Parrish in 1937, which abruptly ended an era of Supreme Court decisions forbidding state-level economic regulation. Today’s scholarship generally argues that the Supreme Court stood down in the face of President Roosevelt’s remarkable threat to pack the Court—but such a strategy would never have worked for Roosevelt without extraordinary popular support for his policies and the congressional majorities that support had produced. (Chief Justice John Roberts has already evinced a concern for the legitimacy of the Court in deciding to preserve the core of the Affordable Care Act.)

When the Court took up West Coast Hotel, the Pollock debacle cannot have been far from their minds—as evidenced by Chief Justice Charles Hughes’ own writing about the case. Such rebukes of the Court can shape events that remain over the horizon. Put bluntly, these challenges offer a stark message to judges: if they are interested in maintaining their power to decide constitutional law, they must use that power carefully.

History is never a perfect guide. In 1909—while police on horseback were charging crowds of socialists on the streets of New York, and Senators in Washington debated a bill aimed directly at the Pollock decision—the nation faced uncertainty that no amount of backward-looking analysis could have cleared up. And the channels of constitutional interpretation are full of kinks and switchbacks. Although the progressive movement ultimately pushed the Court back on taxation, the Court’s conservatives responded in part by finding new areas of doctrine with which to fight against redistributive policy.

Yet today’s politics are ripe for a movement to contest the legitimacy of the Supreme Court. Today’s conservatives—including many of the justices on the Court—built their own power on the idea that judges shouldn’t trammel on the will of the people. Judges, they say, “shouldn’t legislate from the bench.” In recent years, they’ve cited this idea to claim that the Court shouldn’t force states to recognize gay marriages, or overturn restrictions on abortion.

But the conservative coalition has thinned, and conservative jurisprudence seems more and more often to contradict its stated principles. Meanwhile, constitutional scholars on the left have been promoting the idea that the Constitution is meant to guarantee not just formal equality, but the substantive conditions that make democracy possible. The door is open for a new politics of judicial restraint that takes seriously this broader conception of constitutional democracy. The basic principle is simple: where the Constitution is ambiguous, the Court should defer to the people.

Movements have already been built around many of the bold policy ideas Democratic candidates are putting forward. In fact, those movements are a major reason that policies like Medicare for All, the Green New Deal, or a wealth tax made it into the national conversation in the first place. But neither these movements nor their supporters in the Democratic Party are likely to see their aspirations realized in the next decade without a strategy to confront the Supreme Court. Rather than headlining campaign stops by dunking on the Court, or firing up podcast listeners with promises to overhaul Trump’s judiciary, Democrats should learn from their forerunners. In an era of increasing frustration with government, the Court is always at risk of overplaying its hand. The best way to challenge the Court may be to let it do just that.

Jesse Williams is a student at Yale Law School, the cofounder of Scalawag magazine, and an editor of the Law and Political Economy blog.