Washington Monthly - The Too Supreme Court

Open Markets strategic counselor Caroline Fredrickson shines a light on the undercutting of many laws protecting the voting rights of citizens by the Supreme Court.

The Supreme Court of late has radically undercut laws protecting voting rights, reproductive health, and limits on religion’s role in the public sphere. Less visible to many Americans, it has also substantially weakened our ability to regulate business and check the growth of corporate monopolies, thereby abetting growing extremes of inequality.

For some of us, the answer is to change the judges, limit their tenure, or expand the Court to counteract the pernicious influence of the reactionaries currently serving. I was a member of President Joe Biden’s Supreme Court Commission, which studied such reforms and support all of the above. But Americans should also recognize that the problems with the Court go far beyond just who is on it and their terms of service. 

In their brilliant new book, The Anti-Oligarchy Constitution, Joseph Fishkin and William E. Forbath challenge the prestige and legitimacy that today’s liberals still largely ascribe to the Court as an institution. Liberals learned to revere the Court’s role in American society in the mid-20th century when, starting with Brown v. Board of Education, it began a string of decisions that established constitutional guarantees of fair treatment for Black people, women, and other historically marginalized minorities. But along the way, Fishkin and Forbath argue, liberals began embracing two propositions that reformers throughout most of American history never ascribed to and that frustrate progressive change today. 

First, we have come to believe that constitutional law is a narrow, technical field properly controlled by elite legal experts. Politicians and activists pitch their causes to the courts and accede to letting Supreme Court justices, as opposed to democratic processes, ultimately decide what is and is not constitutional, whether it’s a law mandating vaccination or one limiting marriage to members of the opposite sex. 

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