What is the quality of your intent?
On the train to work this morning I listened to Harvard Law professor Laurence Tribe's appearance on NPR's On Point. Tribe was hawking his new book Uncertain Justice. Tribe is a prominent liberal legal mind, but he, in many ways, represents what's wrong with liberal jurisprudence. "The Supreme Court is not conservative. . . it's a radical oversimplification to say so and does a disservice," he said. This worship of a clearly political organ, that is has become conservative, is foolish and gets to the heart of a recent essay in Jacobin by Rob Hunter.
From Hunter's writing:
Disdaining political conflict, liberals would rather seek consensus through conversation. And they would prefer that such conversations take place only among a narrow stratum of elites. . . Liberal enthusiasm for pursuing policy change through the Court rather than through confrontation and struggle illustrates the degree to which progressive politics has become emptied of content and purpose.Tribe's NPR interview was infuriating; he loathed to even call the Supreme Court a political body. This type of weird Court worship is not only foolish, but dangerous given how it puts a civil institution, the Court, on a pedestal as if it's actors are soulless brokers lacking any political agenda. We know this is not true because Roberts was a shrewd politician when he upheld Obamacare, just as Scalia and Thomas are blatant political actors when they speak to far right legal/political organizations. I adore Ginsburg, but she too was a political actor when he, essentially, instructed Congress to write the Lilly Ledbetter Act.
Hunter is right on when he critiques a liberal jurisprudence, a la Tribe, that bows down at the Supreme Court's altar; his suggestion that the Left tirelessly focus on mass mobilization and organization is also completely correct. But Hunter was somewhat misguided when he wrote "Liberals should abandon the search for progressive outcomes through constitutional law. It’s not too late — it’s never too late — to join in the search for a politics in which judicial interference with democracy is not only unnecessary but unthinkable."
His assertion presupposes, even if he doesn't intend for it, that democracy always works. But we know from American history that the citizenry can often be wrong. And sometimes the Court has to step in and correct the course as it did when it produced the "Right to Privacy" idea that legalized abortion rights. For example, if we had waited for the masses to mobilize on this particular issue women would have had to wait much longer for control of their own bodies. "Liberals criticize originalism as arbitrary and backward-looking, even as they deploy arbitrary and backward-looking arguments to defend liberal decisions," Hunter said, even as he accused the Court of manufacturing the right to privacy theory.
The general point, that we have to focus on amassing broad coalitions, is the appropriate advice but it's reckless to not think the Court, especially one with Sotomayors and Ginsburgs, can play an important role in these matters. Conservatives smartly focused on the Court in the 1970s and 1980s and it's now paying off. The Left has to do the same, while never losing sight of organizing and shifting the public's imagination.