After spending nine months traveling throughout the United States in 1831, Alexis de Tocqueville wrote a book to reassure the French ruling class that it had nothing to fear from democracy. Tocqueville’s definition of democracy was not exactly radical by today’s standards. Its main feature was an “equality of conditions,” under which no person was considered inherently inferior by birth, law, or custom — the type of formal equality that later radicals like Karl Marx excoriated as insufficient. For the aristocrats of the July Monarchy, whose families had only barely survived the French Revolution, this limited equality was nonetheless deeply threatening.
But Tocqueville had an answer ready. In America, he wrote, the lawyers are in charge. With their love of formalistic reasoning and their desire for order, lawyers mimic the “tastes and habits of the aristocracy,” and for this reason are “eminently conservative, and will reveal themselves as antidemocratic.” They “resemble somewhat Egyptian priests . . . the sole interpreter[s] of an occult science.” And though they may use their rhetorical skills to appeal to ordinary people when it suits them, they naturally gravitate toward those in power. Lawyers, then, could be counted on to rein in the democratic majority — none more so than the justices of the Supreme Court, which, “armed with the right to declare laws unconstitutional . . . penetrates all areas of political affairs.”
As the Supreme Court is set to welcome a fifth justice nominated by a president who lost the popular vote, it seems we are living in a democracy that would be more than acceptable to Tocqueville’s aristocrats. Under chief justice John Roberts, the court has mastered the art of protecting the interests of conservative elites and the owners of capital against mass democracy. It has allowed the wealthy to spend unlimited money on influencing elections, undermined the legal framework protecting voters against disfranchisement, given states permission to gut public-sector unions, and twisted itself into knots to excuse the Trump administration’s racist immigration policies. With the addition of Amy Coney Barrett — almost certainly chosen for her opposition to popular positions on health care, abortion, and climate — we can expect it to continue on this path, only getting bolder in its defiance of the popular will.
The twenty-first-century juristocracy has also helped consolidate power in the presidency, while the legislature has virtually disappeared as a democratic body. Over and over, the Supreme Court has decided that the executive branch’s discretion to act in the name of “national security” can justify nearly any outcome: from banning Muslims from entering the country to shooting Mexican children across the border.
In an age of imperial presidencies and all-powerful courts, Congress has all but abdicated its role as the main policy-making body. Sweeping legislation creating lasting popular programs is mostly a thing of the past. With only a few exceptions, Congress today mostly prefers to let the president decide to make war, and to let agencies and the courts fight over what is possible under statutes passed decades ago. And one of those notable exceptions, the Affordable Care Act, is currently on the chopping block before the Supreme Court once again. Without organized resistance to judicial supremacy, the United States will remain a democracy only in the barest sense, with the least representative institutions empowered to make wildly unpopular decisions.
There are a variety of strategies to challenge this state of affairs, from packing the court to stripping the nine justices of their power to review statutes to simply ignoring the Supreme Court if it makes an egregiously bad decision. (Though this final path risks strengthening the unilateral power of the presidency, as evidenced by Donald Trump’s refusal to issue new DACA grants this summer despite multiple court orders.)
Whatever the specific strategy, the first step toward mounting a popular movement against the Supreme Court must be to demand that a Democratic congressional majority start playing hardball against the right-wing judiciary. With a contingent of socialists and progressives set to take their seats in Congress, leftists and even rank-and-file Democrats ready to mobilize, and the political nature of the judiciary laid bare, the moment is ripe to dismantle the juristocracy and start to build a system of majority rule.
But we cannot rely on Democratic leaders to confront the power of the Supreme Court without popular pressure. As Dianne Feinstein showed with her softball questioning during Amy Coney Barrett’s confirmation hearings — followed by her maskless embrace of Republican counterpart Lindsey Graham — plenty at the party’s heights are perfectly happy to preside over the disappearance of anything vaguely resembling a left-wing legislative force. Gushing over the qualifications of judges, or over cordial relations with the far right, is cover for the Democratic establishment’s desire to let lawyers govern in their place. Or, rather, in our place.