Dealing with the Supremes

Over at The Third Estate, Arbitrista looks at the Supreme Court mess -- highlighted by a week of awful 5-4 decisions -- and ponders what to do about it all. As he points out:

No matter what kind of political majorities Democrats are able to build in the next dozen years, no matter what sort of policies we manage to enact to reverse the disastrous course of the last seven (or twenty-seven) years, the right-wing Court will be there to stop us. It is the Supreme Court, not Iraq, that is George Bush's ultimate legacy.

While it was Bush who appointed Roberts and Alito, the coming era of right-wing jurisprudence isn't just his legacy, it's the legacy of almost half a century of conservative movement-building. The courts are the ultimate trailing indicator in American politics; seeds that are planted at the grassroots level of electoral politics will bear judiciary fruit decades later. The right's rhetoric in recent years, often so intensely focused on the courts, well-constructed and full of frustration, is testimony to this. The courts were the last bastion of the mainstream world to fall to the movement's forces; even in a right-wing era, years after the Reagan and Gingrich ascendancies, the judiciary branch refused to succumb, because change comes so glacially there.

All of which makes some of Arbitrista's recommendations even more striking:

A less extreme version of the strategy of confrontation would be to apply public pressure - congressional censures, public protests, and most particularly making the Courts and their decisions an explicit political issue. The Democrats in the next Presidential campaign should highlight these decisions, which if they were well-known would be extremely unpopular with the general public. No Supreme Court justice, and most especially not Anthony Kennedy, wants to see the Supreme Court become an issue in electoral campaigns. I believe that making Supreme Court decisions a major element in the campaign would also help Democrat electorally, since it could force the campaign to be much more substantive. The last thing the Republicans want to talk about is repealing environmental laws or gutting civil liberties.

Now some would say that we should not politicize the Courts. To which I respond - the Courts are already politicized. The days of moderate judges who invoke careful legal reasoning drawn from precedent is over. The Court is now ruled by the same clique that we just toppled from power in the Congress and that has drawn Bush down to 26% in the polls.

This, then, would be a liberal version of the very same strategy conservatives have pursued over the years. It wouldn't necessarily be unprecedented for the left, either -- FDR's court-packing scheme might have failed in its immediate objective, but it accomplished his larger purpose, which was to rally political pressure to get a conservative court -- again, a holdover from another kind of era -- to stop obstructing the New Deal. And it's not just about pressuring the courts directly; you also use the unpopularity of their decisions to motivate your base to get you elected so eventually you can appoint the judges.

Being as liberals are meant to value objectivity, fairness, and consensus, a strategy of politically pressuring the courts will be controversial, and I won't address the philosophical merits of the idea here. But history does tell us that ultimately it would be likely to work.