In the liberal stronghold of the Atlantic, Minnesota Law Professor Alan Z. Rosenshtein warns his fellow lefties that the time of liberal goals being legislated from the bench is drawing to an inevitable close.
[T]he Warren and early Burger Courts painted a vivid, alluring picture of what justice by judiciary could look like. And even if liberals understood, deep down, that those two decades were an aberration in American legal history, the Court has given them just enough victories since then to keep the dream alive. For lawyers and law professors, there is also the simple matter of professional vanity: If the Supreme Court is the vanguard of American justice, then judges, and thus the lawyers who argue before them and the scholars who analyze (and, when necessary, chastise) them, are the nationâ€™s most important professionâ€”the priests and elders of the civic religion that is American constitutionalism.
Fundamentally, though, many liberals loved the Supreme Court for the same reason they loved the law: a vision of universal harmony and justice brought about by reason and persuasion, not the brute forces of political power. Victory in the political arena is always incomplete and uncertain, not to mention grubby. Politics appeals to our baser instincts of greed and fear and competitionâ€”which, of course, is why it is so powerful. By contrast, lawâ€”whether through â€œneutral principlesâ€ or â€œreasoned elaborationâ€ or elaborate moral theories, to name a few of the core organizing ideas of 20th-century legal theoryâ€”holds out the promise of something objective, something True. To win in the court of the Constitution is to have oneâ€™s view enshrined as just, not only for today but with the promise of all time.
But eventually liberals lost faith that the Court would interpret the Constitution in their favor. What started as a trickle of disillusionment grew throughout the 1980s and â€™90s and became a torrent when Roberts became chief justice in 2005 and led the conservative wing to undermine a number of liberal legal priorities, from gun control to campaign-finance law to voting rights. Although many liberal lawyers still dutifully fight in federal court to protect rights where they can, they do so with the increasing understanding that they are simply delaying the inevitable. And legal scholars have gradually given up on the Court as a guarantor of constitutional values, advancing theories of popular constitutionalism or progressive federalism to serve as a counterweight to the Courtâ€™s conservative transformation. Whatever was left of the Courtâ€™s sacred aura as above partisan politics was ripped away by Mitch McConnellâ€™s denial of a vote to Merrick Garland in 2016 and the bitterness of the confirmation hearings over Brett Kavanaugh two years later.
The clearest sign that many liberals are giving up their remaining idealism about the Court is that, for many moderate Democrats (not to mention those on the progressive left), court packing has gone from a fringe theory to not just a viable option but a moral imperative if Joe Biden wins in November and the Democrats take back the Senate.