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Incensed Over Amy Coney Barrett's Confirmation? Don't Mourn—Organize and Vote

For the past half century or so, the progressive movement has  often relied on the courts, not the political branches to win and protect rights. It's time for that to change.

Supreme Court Associate Justice Amy Coney Barrett during her confirmation hearing before the Senate Judiciary Committee on October 14, 2020 in Washington, D.C. (Photo: Jonathan Ernst-Pool/Getty Images)

Supreme Court Associate Justice Amy Coney Barrett during her confirmation hearing before the Senate Judiciary Committee on October 14, 2020 in Washington, D.C. (Photo: Jonathan Ernst-Pool/Getty Images)

The  Senate confirmation of President Trump’s nomination of Amy Coney Barrett to the Supreme Court virtually assuring the consolidation of the Court as an extremely reactionary body for years or decades to come raises the question of how human rights and progressive activists should react. Understanding the lessons of American history will allow us not to despair but to return to political mobilization to overcome a judicial institution which for most of its existence has been reactionary.

"On many of the major issues facing the country—climate change, economic inequality, universal health care, structural change for police forces, providing a path to citizenship for DACA recipients—majorities of Americans support federal action, and the courts cannot be the primary engine of change."

For much of American history, major progressive victories were won over the strong opposition of the Supreme Court. The Court generally played a reactionary role for most of the first two centuries of our republic, declaring in Dred Scott that no African-American in this country, whether free or slave, could ever become a citizen or have any rights that a white man need respect. After the Civil War, the Court played a major role in reversing Reconstruction, ruling in 1883 in the Civil Rights Cases that Congress’s effort after the Civil War to bar racial discrimination in restaurants, inns, or public transport was unconstitutional and that other civil rights legislation must be narrowly interpreted. In the 1870s the Court rejected the suffragists claim that the 14th Amendment should be interpreted to grant women an equality of citizenship rights, including the right to vote. Even after the right for women to vote was achieved by constitutional amendment, the Court enforced a constricted view of women’s citizenship, upholding restrictions on women’s jury service as late as 1961. 

In the early 20th Century, the Court held that the Federal Income Tax was unconstitutional and that states could not generally regulate working conditions because to do so interfered with the employer and employee’s liberty to contract. During the 1930s, the Court’s conservative majority struck down much of Roosevelt’s New Deal legislation as beyond the powers of Congress.

Surveying the first 150 years of our constitutional history, the prominent early 20th century labor lawyer and leftist theoretician Louis Boudin, entitled his history of the Supreme Court, “Government by the Judiciary” and excoriated judicial review for its reactionary role. Even the progressive Court of the 1940s, in its infamous Korematsu decision, upheld the internment of Japanese American citizens during World War II. And in the 1950s the Court allowed the leaders of the Communist Party to be jailed for political speech. All of these reactionary decisions were eventually overturned or negated by political movements, constitutional amendments, legislation, or political pressure on the Court.

For the past half century or so, the progressive movement has  often relied on the courts, not the political branches to win and protect rights. On abortion rights, LGBTQ rights or racial justice, the Court, not Congress, has often initiated reforms. But these rights have often come with limitations and compromises, and in precarious 5-4 decisions, vulnerable to reversal.

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The Barrett appointment should shift our focus to political mobilization. We must focus on what has proved to generate fundamentally transformative constitutional change, taking our cues from past activist organizing efforts like the 19th century abolitionists, labor and unemployed movements of the 1930s, and the civil rights and anti-war movements of the 1960s, and the women’s movements. We must work to pass progressive legislation in Congress by voting in leaders who support real change and strengthening democracy by, for instance, installing better voting rights protections, making election day on a weekend or national holiday, and eliminating the filibuster and other legislative rules that obstruct transparency and progressive change. 

"If people recognize the threat to our democracy, turn out and vote Trump and his Senatorial toadies out of office by significant, not razor thin margins, progressive, transformational change is possible despite Trump’s packing the courts."

On many of the major issues facing the country—climate change, economic inequality, universal health care, structural change for police forces, providing a path to citizenship for DACA recipients—majorities of Americans support federal action, and the courts cannot be the primary engine of change.

Moreover, there are numerous ways that Congress could enact legislation that would be impervious to Court reversal. For example, if the Court strikes down the Affordable Care Act, there would be no constitutional impediment to Congress enacting a Health Care as a Right Act, which might expand Medicaid and lower the age for Medicare eligibility. So too, Congress could reverse the Trump corporate tax give away and substitute dramatic tax cuts for green companies. Congress could raise the minimum wage to $15 without judicial interference, and under its plenary immigration power indisputably provide for permanent resident status for DACA recipients. Strengthening voting rights, ensuring that D.C. residents elect Senators, ending the filibuster, strengthening the equal pay laws, and granting workers paid family leave are all within Congress’ constitutional power, as is enacting the George Floyd Justice in Policing Act.

To be sure, a reactionary Supreme Court could overturn longstanding precedent and attempt to constitutionally block progressive legislation and reverse  women’s and LGBTQ rights. But as our history in the 1930s demonstrates, when our people are mobilized and the political branches controlled by progressives, the Court would face the prospect of being transformed by legislative action to increase the number of justices, certainly within Congress’s power to curb a recalcitrant court.

Enacting and preserving transformative legislative reforms requires building an ongoing political movement and exercising our democratic rights, most importantly the rights to demonstrate and vote.  If people recognize the threat to our democracy, turn out and vote Trump and his Senatorial toadies out of office by significant, not razor thin margins, progressive, transformational change is possible despite Trump’s packing the courts. As the labor activist and songwriter Joe Hill famously stated as his death approached: “Don’t mourn, organize”—and vote.

Jules Lobel

Jules Lobel is a Professor of Law and the Bessie McKee Wathour Endowed Chair at the University of Pittsburgh School of Law and former president of the Center for Constitutional Rights (2011- 2016).

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