The Liberal Argument Against The Supreme Court
Y'all need to stop putting all your eggs in the Supreme Court's basket.
The Democratic Party has a “too big to fail” problem. Not just with its responsibility for gutting banking regulations in the 90s — though they certainly deserve to take some ownership on that one — but with the Supreme Court. Loyal liberals have stacked so much of their hopes and dreams upon the Court at the expense of winning hearts and minds in the trenches that if they encounter any speedbump — like, say, a tied election in Florida — their entire agenda is out the window.
The other day, I had a philosophical debate with a friend about whether or not the Republican Party would swap places with the Democrats if given the opportunity. In other words, if someone approached the GOP and asked “would you take the White House for the last 8 years on the condition that you’d lose the House, the Senate, and most of the state governments?” I argued that Reince Priebus or whomever Mephistopheles approached with this deal would reject it out of hand. Controlling the White House is the juiciest plum, but at the end of the day, there’s so much more rubber-meets-the-road power in controlling states and as long as the House and Senate can gum up the works, losing the White House isn’t that big of a price to pay.
My opposite number pointed to the importance of the Supreme Court — the left-leaning trump card played in every round of political strategy Euchre. All sacrifices are justified as long as the Supreme Court remains the last bulwark against reactionary tyranny. Too big to fail yet again.
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Little did I realize that this discussion would define my afternoon as I covered two different panel discussions at the annual Netroots Nation conference that — more or less — took opposing sides in my informal chat, in the process unveiling the very real quandary liberals face when it comes to the Court.
One panel bashed the lionization of the Supreme Court. The other pleaded with the audience to believe it was the most important issue in the election. There’s a lot of daylight there. Today, we’ll look at the former stance.
The Nation’s John Nichols moderated a panel with law professors turned Congressional candidates Jamie Raskin of Maryland and Zephyr Teachout of New York. As Teachout mentioned to me later, it seems running for Congress is the new law professor retirement plan. Free Speech for People president John Bonifaz and GW Law’s Professor Spencer Overton rounded out the panel.
While the focus of this panel was campaign finance and Citizens United, the panel wasted no time undermining the almost clichéd conviction that the Democratic Party should orient itself around the Supreme Court.
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Raskin, already a State Senator in addition to his duties at American University’s Washington College of Law, put it bluntly:
I think that it’s important for progressives to fall out of love with the Supreme Court. You know, it’s still got a halo that still hovers around it dimly from Brown v. Board of Education and the white primary cases, and maybe Miranda v. Arizona, but the fact is for the vast majority of American history, the Supreme Court has been a profoundly reactionary institution.
This is a bold break from the orthodoxy of the Democrats, but one that enjoys the benefit of historical support. The Court is institutionally reactive, after all.
But surely the Supreme Court has value! Obergefell, for instance, is cited as a tremendous achievement for the cause. But as Raskin points out, this exception proves the rule: “We’re celebrating the Court for making decisions a four-year-old could make.” When the Court’s crowning achievement in recent years is a decision where all the momentum was already on its side, it highlights how little anyone should rely on this Court to be the vanguard of any progressive agenda.
As Raskin points out, most of the post-Bill of Rights amendments are about expanding access to democracy, and maybe that’s where the campaign finance fight has to be fought too.
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John Bonifaz shared his former co-author’s (on 1993’s excellent Equal Protection and the Wealth Primary from the Yale Law & Policy Review) belief in an amendment — an idea that, later in the conference, appears to have bitten Hillary Clinton. But Bonifaz outlined some specific, short-term strategies for pursuing Supreme Court action and to take back the offensive in the campaign finance arena.
Remember this gem?
Justice Alito was specifically objecting to President Obama’s assertion that Citizens United authorized foreign actors to dump unlimited money into influencing U.S. elections. Time has vindicated Obama many times over.
Today, Uber is spending huge sums to lobby local governments — huge sums of money it got from its business partner Saudi Arabia. You’d think with all the local ordinances to ban Sharia law, someone would be concerned that a country actually living under that code is spending massive amounts of money to influence local laws. Bonifaz is looking into this and other cases like it to push the courts into facing the contradictions in their jurisprudence.
Professor Overton came at the issue of campaign finance reform from an awkward location, having organized big-dollar fundraisers for President Obama before. But he spoke with the authority of someone who dipped his hands into the muck and wanted to make sure everyone knew how foul it really was. Without caps, big donors are just easier to deal with: less time, less paperwork, less travel. But it also means less diversity. Overton pointed out that people of color are systematically excluded from the donor class and that it’s not just “slavery” but ensuing decades of home mortgage discrimination and redlining to keep black folks from owning homes, and thus tangible assets to pass on. A campaign system based around fewer, bigger donors excludes these citizens from a seat at the table — over 90 percent of campaign donations come from whites.
And he thinks it’ll only get worse. Because he fears both political parties will seek to relax regulations around coordination, arguing that they need to fight Super PACs on their own terms and just further erode the campaign spending regime. Overton advocates a rule allowing parties to send only the first $200 of a donation directly to candidates to incentivize seeking out more smaller donors. Whatever you think of this proposal, it’s clear that this is a fight outside the courts.
Finally, Fordham’s Zephyr Teachout took up the banner of dispelling the singular focus on the Supreme Court. Teachout explained:
Of course we have to be strategic, but sometimes “being strategic” can be an excuse for stepping back and not acting and not supporting. I think that we are in such a fundamental crisis in our democracy, a really once in a lifetime, once in a generation crisis about, whether we can be free, whether we can govern ourselves, whether we can speak freely in the face of power, whether we can come together and make decisions about our future. These basic questions about our democracy are at such level of threat that whichever of these strategies speaks to you, I wouldn’t spend a lot of time worrying about which one is going to work, I think it’s really important to try on all fronts.
With that she explained that corruption in America isn’t limited to unlimited spending but is baked into the process, when the likely career path of a former legislator is lobbying. Not alienating powerful interests is a professional necessity in some corners. That lack of devotion to the public runs deeper than one decision.
The day job of a congressperson is to walk across campus, sit in a little room with a stack of papers, and go over jokes they can tell rich people so they’ll give them 2000 bucks. That’s the day job… to be a sycophant.
And whether such a fundamental transformation of the electoral system is achieved through an amendment or publicly funded campaigns or regulations to encourage small money, the panel was unified in the belief that orienting the fight solely around “getting new justices to overturn Citizens United” had become counterproductive.
As this talk wrapped up, with its cautionary warning against creating a false idol of the Court, I prepared to walk into the next panel that didn’t mince words when it declared the Supreme Court the most important issue in the election.
And both panels may be right in their own way. We’ll discuss that second panel tomorrow.
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.
