There are no major surprises resulting from Tuesday’s primaries so far, so let’s take a look at strategic considerations for Democrats regarding the current U.S. Supreme Court. At The Boston Review, a couple of constitutional law scholars, Joseph Fishkin and William E. Forbath, co-authors of The Anti-Oligarchy Constitution, share their observations in “Make Progressive Politics Constitutional Again: We must reject the legal liberalism that attempts to cordon off constitutional questions from democratic politics.” As Fishkin and Forbath write,
The Democrats are, for now, about two Senate votes shy of enacting a series of major reforms, from addressing climate change to protecting voting rights and making real progress in the fight to rein in the outsized political and economic power of the rich. But even assuming that the Democrats manage to enact such measures—overcoming our system’s many antidemocratic veto points, such as the Senate itself—the toughest challenge is still to come. The looming risk is that all such reforms may be unraveled by our archconservative Supreme Court. The Court has made the Constitution a weapon for selectively striking down legislation the justices disfavor. They are highly likely to wield it against laws that aim to repair economic or political inequality.
The Court can do this with near-total impunity today because many Americans accept the idea that the Supreme Court is the only institution with any role in saying what the Constitution means. Congress and other elected leaders, at best, can fill in the few blanks that the courts have left open. Rather than contesting the Court’s power to make highly questionable judgments about the meaning of the Constitution, most liberals today defend the Court’s authority. Their top complaint about the current Court is that it doesn’t have sufficient respect for its own precedents, which today’s majority is fast overturning as it lurches further right.
Noting that “liberals have contributed to conservatives’ success by imagining constitutional law as an autonomous domain, separate from politics,” The authors add,
There is no future for the liberal idea (never adopted by conservatives) of a sharp separation between constitutional arguments in court and political arguments outside the courts. The border between the two is too thin and porous. Arguments move across it both ways, with profound effects. Declarations by courts shape the terms of public debate and move the horizons of political possibility; arguments in politics shape arguments in court. We are all responsible for participating in debates about the meaning of the Constitution, and we ought to recognize the power of this shared commitment. In the long run, it can help us build a more egalitarian and democratic society than some of our elites, on and off the Court, would accept.
….We see at least three key battles. First, it is time for progressives to reclaim the First Amendment, contesting the way it has been weaponized as a tool to thwart egalitarian legislation in campaign finance and labor law. Second, we must reforge the link between racial justice and political economy, widening the constitutional lens through which we see questions of race beyond antidiscrimination law and voting rights, to include substantive issues of mass incarceration, health care, public investment, job creation, and wealth inequality. Third, we must bring political economy back into view in areas where liberals retreated from politics and ceded power to economists, such as in antitrust, monetary policy, and corporate law.
To challenge the constitutional claims of hostile courts, progressives must first persuade our fellow Americans that certain progressive ideas are deeply rooted in American traditions of constitutional argument. In pursuing these ideas, we are not transgressing constitutional boundaries but rebuilding the economic and political foundations of U.S. democracy.
Among the reforms Fishkin and Forbath suggest, “Lawmakers can also alter the political economy of running for office—and improve the prospects of candidates and movements with poor and working-class constituencies—by making it less expensive to run a campaign.” They note, further,
When law students learn about the New Deal and its defense of the industrial union today, they focus on the expansion of national power through the Commerce Clause. That was part of the story. But at the time, the era’s leading scholar of the Supreme Court, Edward Corwin, saw things quite differently. He saw a constitutional “revolution” taking place—not about the commerce power, but about the constitutional meaning of freedom. Safeguarding workers’ collective freedoms against private employers’ coercion—and guaranteeing “the economic security of the common man” through social insurance—were now “affirmative” governmental obligations….Unsurprisingly, for decades the remnants of this vision have been squarely in the crosshairs of conservative politicians and judges. Starting with the counterrevolution of the late 1940s, the “right to work” movement has waged an ongoing campaign of legislation and litigation funded and supported by corporate executives and employers’ associations, as well as by wealthy anti-union ideological activists, to destroy the New Deal vision of labor as a source of countervailing social and political power against oligarchy.
….As today’s liberal justices stare down a far bolder and more sweeping antilabor intervention, insights about labor as a countervailing power are nowhere to be found. For lawyers focused on the action inside the Court, making such arguments in the face of conservative majorities might seem pointless. But this concern misses the role constitutional arguments play in public debate. They not only shape litigation but also send signals to the political branches and the people about what cases like Janus are really about—not speech, but constitutional political economy. Rebuilding a powerful progressive movement with a central place for organized labor requires forging a new understanding of the constitutional necessity of countervailing power—an understanding that will have to begin life outside the courts, but ultimately will reverberate both inside and out.
Looking to the future, they suggest:
There is a path forward. Democrats committed to labor law reform have gained power within the party. Not since Harry Truman vetoed Taft-Hartley in 1947 (a veto later overridden by the conservative Dixiecrat/Republican coalition) has the White House spoken about workers’ right to organize the way President Biden speaks about it. Although Democrats do not yet have the votes in the Senate, the House recently passed a sweeping labor law reform bill, the Protecting the Right to Organize Act (PRO Act), which aims to repeal crucial elements of Taft–Hartley and boost efforts to organize unions. Among other things, the PRO Act would expand the definition of work to ensure that organized workers in today’s fragmented workplace—from fast food franchise workers to “contracted” Uber and Lyft drivers, to home health care workers—can bargain with the companies who benefit from their work. The PRO Act would repeal some of the most crippling restrictions on the rights to strike and boycott, such as the ban on so-called secondary actions, which blocks workers who have some organized economic clout from aiding workers who don’t. As the House Education and Labor Committee puts it, the Act would enable “unions to exercise these basic First Amendment rights.” It is very encouraging that this view—that the Taft-Hartley prohibitions violate basic constitutional rights—is once more gaining strength in Congress.
Enacting transformative labor law reform will involve fierce and protracted battles, not only in the Senate, but in courts (where challenges are inevitable), in workplaces, and in the public sphere. Getting there will require both Democratic majorities committed to such change and considerable labor organizing and action on the ground. As in the 1930s, workers will need to exercise their rights to organize, strike, and act in solidarity in contexts where this is now illegal, in the face of judicial injunctions, fines, and jail time….Progressives will need more than the old liberal response that Congress has broad power under the Commerce Power to regulate the national economy, and that Congress has exercised that power to promote labor peace. Both in court and outside of it, and in legislative bodies from city councils up to Congress, progressives should work to show their fellow citizens that rebuilding labor is a constitutional necessity.
Fishkin and Forbath also address current legal concerns regarding racial justice and disproportionate corporate power to manipulate the economy, and conclude, “We must disperse political and economic power widely enough to ensure that economic opportunity is broadly shared and racially inclusive. These are not merely constitutionally permissible goals; they are constitutional necessities. Legislators and citizens who hope to reverse the present slide into oligarchy need to recover these arguments and deploy them to help rebuild the democratic foundations of our republic.”
