The Courts Were Always Bad. Now They’re Fundamentally Illegitimate.

For too long, progressives have accepted without question the legitimacy of the courts. That needs to change now.

The Supreme Court's courtroom in 2009. Andrew Abernathy / Flickr

The confirmation of Amy Coney Barrett will end up putting not only issues such as abortion and LGBT rights at risk, but also the fundamental ability to advance progressive economic goals.

During the forty years of the Lochner era, spanning from the late nineteenth century through 1937, the Supreme Court advanced a deeply regressive view of the Constitution and the definition of freedom, striking down child labor laws, laws protecting organized labor, minimum wage laws, legislation regulating the coal industry, and other important protections. The least democratic branch of government gave itself sweeping powers to invalidate the work of progressive elected officials.

The end of this era only came after Franklin Delano Roosevelt’s late-1930s court-packing threat.

Now, with a 6–3 majority on the Supreme Court that is not only conservative but filled with justices hand-picked by the deeply reactionary Federalist Society, we risk entering a new Lochner era. Almost immediately, the Affordable Care Act will be put at risk. But threats do not end there. This majority on the court could hamstring any efforts to confront the threat of climate change and to challenge monopolies, and it will directly threaten our democracy.

For too long, conservatives have been permitted by the media to make the absurd claim that the court was filled with judicial activists, while the conservative justices were just calling “ball and strikes.” They were the originalists, with a Ouija board that could divine the true intent of the Founding Fathers, whose blessing would be magically bestowed on their decisions.

Over the years, this has led even previous courts to issue some deeply radical decisions. In District of Columbia v. Heller, the Supreme Court overturned a long-held precedent to rule that the Second Amendment gives Americans an individual right to bear arms as opposed to one bestowed on a “well-regulated militia.” This was used to strike down Washington, DC’s handgun ban. But, then as a judge on the DC circuit court, Brett Kavanaugh’s opinion in the case also declared that banning semi-automatic assault rifles would also likely not pass constitutional muster.

In the Citizens United decision, which in and of itself was deeply flawed, Clarence Thomas’s concurrence separates him from the rest of the court, declaring that disclosure of political donations itself is an imposition on free speech rights. This was a lone view in 2010 but could increase in prominence with the current Supreme Court.

The fundamental reality is that, for too long, liberals have been overly invested in the legitimacy of the courts. At the same time, conservative advocates continue to advance completely bad faith arguments, protected by the sheen of the judiciary being above politics.

With the confirmations of Neil Gorsuch and Amy Coney Barrett, the idea that the Supreme Court has any legitimacy should be verboten among both liberals and leftists. Through Mitch McConnell’s behavior during these confirmations, he has given up any argument for the validity of the institution.

Adding seats, mandating retirements to the lower courts, or enacting jurisdiction-stripping legislation that would reduce the court’s power are not radical moves, they are simply a necessity to prevent the repeal of fundamental rights.

John Roberts, in his time as chief justice, has seemingly been aware that the court risks losing legitimacy and has made every attempt to preserve the institution through a long game of narrowly tailored opinions on issues such as the ACA and DACA that put him at odds with the court’s other conservatives. At the same time, he’s used his power to roll back voting rights in a not-so-transparent attempt to cement Republican majorities.

With Donald Trump threatening legal challenges likely to head to the Supreme Court, Roberts could lead another ruling that seemingly bucks conservatives but is actually designed to strengthen his power to issue more radical and damaging rulings in the future.

It’s not that far-fetched. If, today, Donald Trump is defeated at the ballot box but puts up a fight in the federal courts to maintain the White House, the case will almost certainly end up at the Supreme Court. If Roberts were to put together a majority that ruled against Trump and affirmed Joe Biden’s election, the media will cheer the Supreme Court as once again having the cleansing sheen of being an institution above the day-to-day partisan fights of Washington, DC. Roberts could then use this leverage to stymie any possible progressive legislative priorities. He could go so far as to strike down minimum wage laws, worker protections, environmental regulations, and immigration rules, along with overruling Roe and Obergefell. We could end up pining for the Citizens United era, as large anonymous political contributions given directly to candidates is deemed constitutionally protected speech.

Anyone who accepts the legitimacy of this court is simply writing Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, John Roberts, and Clarence Thomas a permission slip to repeal every major political gain of the twentieth century and future legislative victories to come.

We should demand a Supreme Court that defers to the will of legislative majorities and upholds rights that enhance our democracy. We’ll need years of struggle, starting now, to get to that point.