- Interview by
- Daniel Denvir
Fifty years after Roe v. Wade, Dobbs v. Jackson has overturned the right to abortion. The decision follows decades of the Right taking control of the Supreme Court, the expansion of the prison industrial complex, and the failure of the center-left to fight back. But the conservative shift in our institutions should not come as a surprise; the Supreme Court and the Constitution were founded to protect the rights of the elite minority from the popular majority.
Jacobin spoke with legal scholars Aziz Rana and Amna A. Akbar and Movement for Black Lives lawyer Marbre Stahly-Butts about why the liberal veneration of law without politics has failed us. You can listen to the episode here. The conversation has been edited for length and clarity.
Sam Moyn recently told Jacobin, “In the end, [we’ll] have to read [Ruth Bader Ginsburg’s] legacy through the bet she made on her own longevity, while leaving others to deal with the consequences.” Does Ginsburg’s refusal to exit the Supreme Court during the Obama administration, and the opportunity this provided Trump to fill her open seat with a right-winger, reveal that liberals have become victims of their own veneration of the Supreme Court?
Democrats controlled the Senate and the presidency when Obama won reelection in 2012. Ginsburg could have stepped down then and been replaced with a Democratic appointment. Her political decision not to do that will remain part of her legacy. But we should not personalize the issue. People who exercise extreme power find it difficult to give up that power. We should not have institutions in which individuals can be guaranteed a lifetime of power. We need to transform the court rather than focus on Ginsburg as an individual.
Her decision also embodies an idea that has lingered from an earlier era in American politics that there can be bipartisanship on the Supreme Court — that a justice like Ginsburg can be friends with [Justice Antonin] Scalia, and Democratic and Republican justices will behave similarly since they share the Cold War vision of American identity.
The visions of bipartisanship and a Supreme Court above politics have always been fallacies. Bipartisanship didn’t end just now, and politics was not civil even before this moment of polarization. Often, because justices are not impacted by their decisions, cases can seem civil. But for the people who bear the consequences of these decisions, they are not civil.
Liberal feminists pushed back against calls for Ginsburg to step down. Irin Carmon and Shana Knizhnik, authors of Notorious RBG, wrote: “Historically, one way women have lost power is by being nudged out the door to make room for someone else. Not long before pop culture discovered RBG, liberal law professors and commentators began telling her the best thing she could do for what she cared about was to quit, so that President Barack Obama could appoint a successor. RBG, ardently devoted to her job, has mostly brushed that dirt off her shoulder. Her refusal to meekly shuffle off the stage has been another public, high-stakes act of defiance.”
What do you make of this liberal feminist politics that has invested in an elite woman despite its catastrophic consequences?
Liberals do not question power; for them, law is a marketplace of ideas, and whoever has the best argument prevails. Once power and politics are taken out of the question, people cherish that a conservative jurist is able to see past politics and power to talk about the “real things that matter” with a liberal jurist. The same premise underlies the liberal feminist hesitation to critique Ginsburg.
Republicans have been fighting for power for decades. They have a vision and common goals, and they’re disciplined about using all the strategies at their disposal to achieve it. Democrats are instead committed to discourse, representation, and diversity rather than a specific vision or strategy. So, to them, the question is reduced to whether we are insulting the agency of a woman who got appointed to the court rather than thinking about the role of the Supreme Court in women’s liberation.
The fact that a person can make the decision she made and have the impact it has had points out how unjust our Constitution is. The right to make the decision that you will serve out your entire life and leave the majority to deal with the implications is our Constitution’s original sin. It’s problematic for the Supreme Court’s legitimacy.
Liberal feminists’ hesitancy also reminds me of post-presidency conversations around Obama. When people criticized him for hanging out on private islands with billionaires, others pushed back by saying that no one had made those arguments about white presidents. This type of criticism fails to distinguish between the person and the questions being posed around the power that person holds. It’s appropriate to say that Ginsburg can pursue her professional career as she chooses, but it’s also appropriate to say that there are problems with the nature of the power she had.
Why is there no meaningful liberal or left counterpart to the Federalist Society? Conservatives have a cold-blooded, realpolitik approach to the courts, but why does liberals’ reverence for the judiciary preclude them from taking that approach?
The most well-known, liberal alternative to the Federalist Society is the American Constitution Society [ACS], which has chapters across the US on law school campuses. The ACS hoped to help people get into clerkships, and it made a bet within elite law schools that demography was on their side and the center-left could win elections in the future. If they could win future elections, then they could choose who was on the courts.
At some point, they were close to winning that bet. If [Al] Gore had been elected in 2000 and [Hillary] Clinton had been elected in 2016, the center-left could have reshaped the federal judiciary with institutions like the ACS. But, these two historical events did not occur, undermining the institutional power of the mechanisms that existed to put young, left-leaning people into those clerkships.
So it’s wrong to say that the center had no strategy. They had a strategy; it just failed miserably. Today, those internal institutions are weak, and the center-left has to confront the structural problems of the courts.
The courts and litigation are tied to neoliberalism’s attack on people’s lives, access to meaningful work, adequate wages, and safety from the police. Our formal institutions have had a rightward drift. Corporate power is rising, and people’s lives are getting more precarious.
So, even if the popular vote prevailed or Gore had fought harder, I don’t think we would be in a different place. The liberal strategy has tried to square the contradictions of the US’s promises and people’s precarious realities by focusing on the courts. But, in doing so, it focuses all of its firepower on convincing the elites within those courts. Law depoliticizes conflict by making judicial forums, rather than mass political struggle and public engagement, the arena for fighting over fundamental questions. Whether or not their strategy had failed, liberalism would be in crisis right now.
The center-left was also betting on the legitimacy of institutions that have failed us. Historically, the court has been the enemy of the people around issues like slavery, the sterilization of black and brown people, disability rights, and workers’ rights. When the court has been on the side of the people, it has been because of decades of people in the streets protesting. The bet that the center made on the courts is failing because the court, since its inception, was meant to fail people on the side of justice and power for the most oppressed.
The Warren Court has made liberals and leftists look to the Supreme Court to protect minorities against the tyranny of the majority. But liberals exaggerate the Warren Court’s role in civil rights as if it wasn’t moved by the mass, democratic politics of the New Deal, the Civil Rights Movement, and the Great Society era. How do you see the historic role of the Warren Court throughout the past half century in shaping liberal politics around the judiciary?
Today, conversations about the Constitution occur in the courts through the privileged interlocutors of law professors. But this was not always the case. Before the 1920s, most legal education was about private common law like property contracts and the Constitution, and was studied in history or political science classes. It was understood that the Constitution was both a legal and political order, and it could not be understood by the interpretations of the Supreme Court justices. Socialists and New Dealers thought that rights were guaranteed by mass movements and legislature action as much as they were by the court.
In the second half of the twentieth century, constitutional law professors rose to fame and the court claimed the authority of the protector of rights as a result of the Cold War, the Warren Court era, and Brown v. Board of Education.
Liberals learned an anti-political lesson from the Warren Court, but the Right seems to have learned a political one. In reaction to Warren Court era reforms, the Right pursued a strategy of condemning “liberal activist” judges like Earl Warren to secure appointments for judges who, ironically, pursued conservative activism on the court. Why does everyone talk about the court as an institution above politics when only liberals seem to believe that?
The idea that law is above politics is central to law’s legitimacy in the US. Conservatives understand that this is a myth. When a legal dispute is decided in court, the decision is considered final by liberals. Conservatives, knowing that any court decision is contingent on the political moment, do not consider them final.
For example, liberals, progressives, the Left, and women won the right to abortion with Roe v. Wade. Ever since, conservatives have fought to overturn Roe v. Wade because they have understood that the decision can be undone. Liberals don’t see law as a terrain of political struggle, so they forgo conservatives’ strategies.
Liberals celebrate the Warren Court for the criminal procedure “revolution,” which stepped in on behalf of “criminal defendants” to make the criminal justice system fairer. But, as a result of this revolution, there was an explosion of spending on prisons, policing, and criminalization. We can learn from the Warren Court’s jurisprudence on criminal procedure that when rights are attached to state violence, the court legitimates and authorizes the expansion of state violence against the public.
The 8th Amendment bans cruel and unusual punishment, but the judiciary, including Ginsburg, did little to stop the rise of mass incarceration. Instead, it has limited its involvement in criminal justice to individual defendant due process rights. What does this reveal about the courts?
The court has gone beyond just that: it has protected violent actors in the criminal justice system by creating qualified immunity. Both liberal and conservative justices have legitimized the caging of people at alarming rates. These institutions have failed and lacked accountability to those whom it is supposed to be providing justice, even when they have been captained by liberal folks.
Ginsburg and the Warren Court both chose procedure over justice. The Supreme Court and Constitution were both created to protect elite individuals, and the court continues to maintain history using any means possible. If we were pursuing the abolition of the prison industrial complex, the court would never be our friend, even if there were “liberal” judges on it. Its decisions have repeatedly cemented relationships between police, prosecutors, and judges.
Aziz, is there a more glaring indictment of liberal law without politics than mass incarceration?
No, there isn’t. The question of where mass violence comes from is central to liberal politics. Liberals don’t believe that the state has perpetuated violence through mass incarceration, the treatment of migrant communities, or the Red Scare. Instead, it demonizes the people as threats to rights. And if people are the primary threats to rights, then the best way to protect those rights is to insulate decisions in elite courts and culturally controlled institutions. The center-left’s anti-populism explains why it sees the Warren Court as a success.
Meanwhile, the libertarian hold on Republican politics is on the rise, erasing the violence of the market from legal discourse and politics.
Supreme Court debates often focus on “social issues,” like abortion and gay rights. Why does the Supreme Court not consider economic politics or right-wing attacks on the redistributive state, which almost succeeded in overturning Obamacare and may now undercut employees’ bargaining rights?
This results from the domination of the “twentieth-century synthesis,” which refers to the idea that economics and politics are separate and that the proper questions for legal inquiry are questions of state violence. Questions of power and distribution became irrelevant to legal and constitutional debates.
Supreme Court debates have been based on the assumption that there is a mid-twentieth-century settlement on the constitutionality of the New Deal Order. Many assume that we still live in that New Deal Order, and we primarily are fighting over questions of membership and inclusion. But, this doesn’t acknowledge the extent to which the state has transformed over the last forty years around these questions of membership. Over the last few decades, the Right has uprooted that mid-twentieth-century settlement.
Liberals have participated in the settlement by accepting the legitimacy of market capitalism. They don’t see the questions of social democracy and the welfare state as the central battlegrounds for political struggle. Pro-business cases have centrist support on the court; they are not 5-4 decisions.
Abortion has been debated in the courts for a long time. What has resulted from court-centric reproductive politics? And what is your opinion on Ginsburg’s critique of Roe v. Wade as having fomented antiabortion reaction and depoliticized abortion rights politics?
Ginsburg argued that there would be stronger support for abortion if we allowed state legislatures to work through the issue as they had been. New York State, for example, liberalized abortion laws. But, when the Supreme Court stepped in through Roe v. Wade, it fomented a countermovement and backlash that, in the long run, arrested the rights promotion taking place on the state level.
The court is so prominent but so ineffective. Whether its abortion, Brown v. Board of Education, or indigenous rights, the court has not produced solutions. If you are in Alabama, Roe v. Wade means almost nothing to you. The obstacles to receiving an abortion are insurmountable. Similarly, despite Brown v. Board of Education, schools are more segregated today than they were in the 1960s. The court’s decisions on social issues are performative.
The court is more effective in making its decisions on corporate cases come to fruition. But, these other “rights” have been symbolic wins that capture our attention and distract us from other issues. It is still a huge threat when decisions limit or shut down rights. But when the court grants rights, these decisions are animated and executed by mass action. The power of people who organize is what pressures courts to make and implement decisions.
I criticized Ginsburg’s analysis because it fetishizes state and local politics. The majority of Americans support the right to abortion, but our constitution makes it difficult for popular sentiment to shape laws. We have the hardest constitution in the world to amend: it requires the approval of two-thirds of Congress and three-fourths of states. Constitutional change thus lies in the hands of the courts rather than constituent power. It should be that a mass movement of organized people can impose national policy consistent with social justice.
The court has reimposed business rights and undermined union organizing because corporations can assert national power at the point of production. Our constitutional system allows corporations to hold power nationally while fracturing the people through an undemocratic electoral process. So, the important wins we secure through the court end up pyrrhic because of limited electoral strength.
The Right does not argue that the Supreme Court is undemocratic because of lifetime tenure or “activist” judges. Instead, it takes advantage of its ability to exert minority rule through the court, and then it says that the activist judging of conservative judges — which includes defending corporations’ rights, striking down people’s human rights, and maintaining protections for state violence — is just the law. The Right asserts that it speaks for the people against an activist court while it imposes minority rule.
This project goes back to the origins of our country. The “we” in “we the people” was kept as small as possible. It was we the landowners, we the business owners, and we the whites. This is not a new phenomenon. The Constitution supports the Right’s project because it was also the Founders’ project.
Do conservatives have a built-in advantage in fights over the courts around the Constitution given that it is a conservative, antidemocratic constitution?
Yes. The Constitution serves to preserve elite rule. The current aims of the Republican Party do not have majority support. To compensate for this, the Republican Party takes advantage of the constitutional system to maintain power with a minority. Over the last fifty years, Democrats have nominated four justices. This is despite having won the majority vote in six out of seven of the last presidential elections. Meanwhile, Trump, who did not win the majority vote, nominated three.
Approximately 70 percent of the US population lives in fifteen states. Republicans can sustain their control of the Senate and block popular positions even though they do not have popular support. Any genuinely democratic mass movement has to begin from the perspective of radical constitutional transformation and confront these problems.
Ginsburg’s death and Republican’s push to install [Amy Coney] Barrett has shifted court-packing, DC statehood, the end of the filibuster, and other dramatic reforms to the center of liberal discourse. What do you make of this shift in conversation and how should the Left relate to it?
The shift marks a deepening of the crisis that liberals and Democrats have been facing since Trump’s election. They have to confront the history of our country and the myths that sustain the current order.
The Supreme Court, which has traditionally embodied law above politics, is becoming subject to debates around reform, and these debates are a good sign. We are rethinking the notion that the Supreme Court should be unchanged.
But, liberals and the Left differ in their proposals. The liberal approach is reformist and aims to legitimate the institution and reinstall balance to it. The Left approach must be non-reformist and diminish the power of elite rule in politics by diminishing the power of the Supreme Court. Reforms should strip jurisdiction of the court over certain issues or call for supermajorities for decisions. We need to think about reforms that, for instance, would make it harder for the court to invalidate the Green New Deal if that was passed.
The Left cares about these reforms because they allow us to improvise a new, emancipatory social order out of the old. We need to create conditions in which it is difficult for the existing order to reproduce itself, and we need to expand the political power of oppressed groups who are not represented by the Democratic Party. Even though the Democratic Party does not share these same objectives of the Left, it shares the common cause of policies for court reform.
Many on the Left argue that we need to check judicial supremacy by ending judicial review or requiring a supermajority on the Supreme Court to strike down laws instead of court-packing. Given the attention that court-packing is receiving, is it wise for the Left to propose alternative strategies, or should it support both court-packing and checks on judicial supremacy?
The Left should say “yes, plus.” Norman Thomas, a prominent socialist from the 1930s, backed court-packing then but doubted that it would be significantly better to be ruled by fifteen judges instead of nine — court-packing wouldn’t solve the underlying problem.
One way to think about court-packing is as a partisan fix that could restore legitimacy and normalcy. But, we can alternatively think of it as the first step in the transformation of the court system. The end goal would be the abolition of the Supreme Court and our federal court system as currently organized. The Supreme Court is characterized by lifetime tenure, few seats, and no amendment path, which centralizes power. We need to expand the number of justices on the court, impose term limits, have a retirement age, simplify the amendment process, and connect court-packing to similar reforms for the federal judiciary. There is a much larger range of reforms than just adding two judges or supporting [Pete] Buttigieg’s 5-5-5 plan, which will just entrench our partisan divides.
I am skeptical of court-packing. Ruth Wilson Gilmore has said that we have to assume we will win. The idea that we can use court-packing as a stepping-stone for the next fight to delegitimize the court is questionable. Over and over again, we end up settling for reformist reforms in the name of stepping toward transformation, but never reach that transformation.
This moment has created a possibility for desanctifying these institutions. Just like capitalism gets mystified as inherent and ahistorical, so, too, does the Supreme Court. But, this is not a sanctified institution or one that has served us. We need both judicial review and an amendment process. Because our constitution is so difficult to amend, the nine people who are appointed get to change the Constitution in the different ways that they read it. So we also need to make sure that if they can use judicial review, that they do it with a supermajority.
We shouldn’t take steps to put Band-Aids on a bullet wound. This means that we might lose. But having fifteen people on the same court doesn’t do me as a black woman any good in thirty years if there isn’t a shift in the ways that the court wields power. Court-packing would allow liberals and even some leftists to claim a victory when there isn’t one.
Aziz, what is the mechanism for a sign for creating more seats?
There is a constitutional amendment process, but that is foreclosed. There is also a legislative process. Congress has the ability to establish inferior courts and create a legislative scheme for appointments. There could be, for example, a legislative package that would provide new federal judges, and those federal judges would circle on and off the Supreme Court. There would still be lifetime appointments to the federal courts under Article III, but the time you could spend on the Supreme Court would be limited. This way, the number of justices would dramatically expand, and they would serve on the Supreme Court for shorter periods of time. But, the problem is that the constitutionality of a legislative fix would then get litigated on the courts.
Pushing Democrats in Congress to go that far would require mass politics and engagement. For these reforms, it matters what stories we tell, the movements we build around them, and the people we organize. If we support court-packing, we need to do so in a way that questions the role of the court and reminds the public that these are political institutions we can withdraw our legitimacy from to build new things.
Marbre, do you see a possibility of linking court politics to emancipatory left and black political projects that include economic justice and the end of the carceral state?
Abolitionists have posed the question of whether there is a Supreme Court in their future. The answer is: not this Supreme Court. But, there remains the question of what the role of the state in justice is when the state has so long been affiliated with violence against black and brown and poor people. I oppose court-packing with transformational reform because the court, as long as it’s seen as legitimate, will commit violence against people. The court is not a legitimate actor to pursue justice for black and brown individuals.
Over the past few months, partly because of COVID-19 and the uprisings, there has been an expansion of mutual aid outside the state and the courts. People are finding ways to ensure justice and healing that have nothing to do with the court system because that court system has never actually supported justice for black Americans. Organizing around abolition has happened outside of the courts for a long time with good reason.
The COVID-19 crisis, the uprisings, and now the Supreme Court makeup has laid bare how the failures of our institutions are multiplying. The systems we have aren’t meant to solve our problems. I don’t know that there can be a relationship between abolition, defund, and the courts.
The judges, including Ginsburg, are state actors invested in state violence. The abolitionist agenda does not appear before the court because they decide the cases that come to them. Then, they write their opinions, which are taught to them in a constitutional law class at an elite school. [By allowing this,] the public has handed authority over the Constitution’s meaning to a small set of jurists who are themselves officers of the state engaged in violence. We need to extract constitutional politics from the court and de-emphasize the legal conversations that take place on the courts as our primary way of thinking about racial justice or economic reform.
Should the Left believe in a form of law that is insulated from politics? Or should we toss out the liberal notion that the judiciary should protect individual and group rights against the tyranny of the majority?
Law and politics are not separate. Law is infused with power relations that sustain injustice and inequality. But that doesn’t mean that we should collapse law into politics domestically or internationally. That collapse often unleashes the existing forms of power. An example is Trump, who violated basic international human rights abroad and defended his own impunity.
The Right has, for a long time, made arguments that pure politics should dominate the national security arena. We should instead defend rights and use law as a tool to hold those with absolute impunity accountable to the very rules that they established. But law is not the tool for emancipation. The language of rights does not have to be driven by litigation; it can be driven through legislative or popular means as it has been done so historically.
The carceral state has such a deep footprint that it’s difficult to imagine the law without the state’s carceral apparatus. There is also little regulation over corporate power and what Ruth Wilson Gilmore has called “organized abandonment.” These pulls together make it hard to do something different with the law.
But, right now the Left must embrace law as a terrain of politics. Movements right now have an intuition about the anti-populist, anti-majoritarian nature of the courts, something evident in the fact that they are focused on local politics and city budgets rather than the courts. Their focus on questions of redistribution fundamentally dislodges the centrality of the rights debates, and these movements are transforming what we think of as a “reform agenda.”
There hasn’t been any time when the law has been apolitical. Slavery, apartheid, colonialism, and genocidal antisemitism were all regimes organized through laws. Law does not exist outside of the will of the people, who are political beings, and society, which is a political endeavor.
The Left project understands that law is deeply political, ahistorical, and unsanctified. Therefore, it must be changed. Mitigating harm through law is important, but we cannot use the master’s tools. Law cannot be the only terrain on which we wage battle. People give much time and energy trying to fight the law inside the court rooms, but the revolution will not happen in a courtroom.
Most people experience the law through their local courthouses, which evict them, prosecute them for courts, or charge them a ticket. So, the Left project is by and for working class people. Because the legal process produces so much exploitation and violence through eviction, deportation, and incarceration, we can’t disavow the courts as a site of battle. But when you focus only on the Supreme Court, you forget the more real and practical way the law shows up in people’s everyday lives.
Courts also limit who can act inside of them to limit mass movement. You need to have a law degree, for instance, to speak inside of these systems. This elitism reproduces itself from the nine people on the Supreme Court down to the criminal courts, in which you need a lawyer and you cannot operate on your own benefit.
The Supreme Court has never protected and will never protect in this form. Even if we pack the court, we are the ones who protect ourselves through mass movements and organizing. Legal experts are not the ones who actually enact change. Fights in court are relevant, but we need to pay attention to the fight that has been happening in the streets all summer, decade, and century. This fight dictates all other decisions.