[The party needs to take its cue from America’s most celebrated
leaders, who had no fear of talking directly to the public about the
Constitution.]
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THE DEMOCRATS’ APPALLING FAILURE TO CONFRONT THE ROGUE, RIGHT-WING
SUPREME COURT  
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Simon Lazarus
April 21, 2023
The New Republic
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_ The party needs to take its cue from America’s most celebrated
leaders, who had no fear of talking directly to the public about the
Constitution. _

, Stephanie Keith/Getty Images

 

President Biden and his allies in Congress and state capitols have
coalesced around one big strategic idea, to reinvigorate and update
the New Deal–Great Society–Obama Democrat policy agenda—the
better to demonstrate the Democratic Party’s desire and capacity to
address the needs of working- and middle-class constituencies, broaden
the party’s resonance with professional and suburban voters, and
revitalize unions and other institutional bases of political support.
They’ve played this game quite well—with one glaring, perhaps
fatal exception: They’ve not come up with a game plan to prevent the
ostentatiously reactionary, often partisan Supreme Court 6–3
supermajority from scuttling their current agenda or from dismantling
the foundational ideas from previous decades on which their new
platform has been erected. Indeed, they have yet to even try.

This is nothing new. For decades, Democratic politicians have dodged
challenging the ultra-right’s drive to junk the post–New Deal
liberal Constitution, with made-up doctrines that, in the apt words of
liberal Justice Elena Kagan, would make “most of government
unconstitutional.” It’s a good line from a justice who understands
that such rhetoric can be a powerful weapon. It stands in stark
contrast to a Democratic Party that has remained perversely
tight-lipped in the face of the existential threat the Supreme Court
poses to its aspirations. If Democrats want to change this dynamic,
they will, at the very least, have to start talking about it.

In its first two terms following Biden’s ascent to the White House,
the court’s right-wing justices have flaunted their zeal to validate
Reagan Solicitor General Charles Fried’s 2020 warning that they
would “take a constitutional wrecking ball to generations of Supreme
Court doctrine.” In addition to their incandescent elimination of a
half-century-old individual right to abortion, the reactionary
justices have, with less notice, overridden explicit constitutional
and statutory text to ax long-standing labor, consumer, health,
safety, environmental, and civil rights regulatory and safety-net
guarantees.

In one of the most egregious overreach cases, their June 2022
invalidation of the Biden Environmental Protection Agency’s
regulatory plan (supported by both environmental and power industry
advocates) for slashing power plant carbon emissions, the justices
effectively empowered themselves to nullify any executive program of
which they, their political allies, or major political donors
disapprove. They twisted a hitherto little-used “major questions”
doctrine to confer onto themselves the power and permission to block
any executive initiative not to their liking, consistency with
relevant statutory text notwithstanding—a vacuous doctrinal
confection could cover any important regulation or agency action. 

Biden, and most Democratic politicians, reacted to these body blows to
liberal governance with little more than feckless press-release
lamentations that treat these “retrograde rulings”—to use
historian Jeff Shesol’s words—as “discrete events rather than
the defining project of the court’s conservatives: to lay waste to
the welfare state and the administrative state, the civil rights
revolution, the underpinnings of an accountable, workable
government.” The tenacious resistance among many Democratic
politicians to publicly challenge the court’s misdeeds stands as a
spectacular act of self-abnegation.

Conservatives don’t make these mistakes. They hoist the banners of
“originalism” and “textualism,” as legal cover for yoking the
courts to their policy and political agendas, even while ignoring
originalist or textualist principles whenever they prove politically
inconvenient. Right-leaning politicians, pundits, and policy advocates
turn arguments developed by their academics, judges, and legal experts
into slick talking points. When liberal politicians ignore the
right’s fabricated claims that modern liberal governance flouts the
Constitution, or that particular liberal measures disregard pertinent
statutory text, the results can be devastating. 

For example, as I have written, two months before the March 2012 oral
argument in the blockbuster Supreme Court challenge to the Affordable
Care Act’s “individual mandate” to buy insurance, a Gallup poll
reported that 54 percent of respondents who_ supported _the ACA
thought it was_ unconstitutional._ They had, after all, never heard
anything to the contrary. In such an environment, conservative
justices could have felt unconstrained by potential public
backlash—as evidently did the four conservative dissenters, who
stridently demanded wholesale invalidation of the law. Had the current
6–3 lineup been on the 2012 court, that dissent would have been the
majority opinion, and the Affordable Care Act would have been toast.
Since the court’s new majority will likely last for decades, it is
political suicide for Democrats and liberals to continue giving their
adversaries’ threadbare legal claims free passes in political and
public opinion arenas.

Liberal politicians’ allergy to public constitutional and legal
messaging is especially puzzling, since their allies on the court
itself have no such inhibition. In shrewdly crafted opinions and, more
remarkably, in extrajudicial speeches and statements, the liberal
justices have trotted out chestnuts ready-made for talking points,
speeches, op eds, and even bumper-sticker one-liners. 

There are numerous examples on hand. In June 2021, in _Brnovich v.
Democratic National Committee, _Justice Kagan jabbed that the
right-wing majority’s decision to override unambiguous text of the
Voting Rights Act, in order to uphold an Arizona voter-suppression
law, “inhabits a law-free zone.” In December 2022, Justice
Ketanji Brown-Jackson, in an oral argument rejoinder to Alabama’s
constitutional attack on affirmative action, detailed the legislative
record of the Reconstruction amendments, to demonstrate that “the
framers themselves adopted the equal protection clause, the
14th Amendment, the 15th Amendment in a race-conscious way.” 

In a December 2021 argument over Mississippi’s unabashed effort to
give Donald Trump’s newly reconstituted court the opportunity to
overturn _Roe v. Wade,_ Justice Sonia Sotomayor snarked, “Will
this institution survive the stench that this creates in the public
perception that the Constitution and its reading are just political
acts? I don’t see how it is possible.” In June 2007, after the
then-new Roberts-Alito majority dropped several end-of-term decisions
upending major liberal precedents, former Justice Stephen Breyer
quipped from the bench, “It is not often in the law that
so_ _few have so quickly changed so much.”

These and other similarly punchy judicial broadsides generated
extensive media coverage and repetition. So far, liberal politicians
and their P.R. teams haven’t seen fit to either recycle these barbs
or invent new ones.

There is a simple reason for liberal and Democratic leaders’
zip-lipped nonresponse to the legal right’s provocations. They
cleave to the notion that it is simply not proper to have certain
debates in certain fora; in this construct, Democrats hold that
“interpreting the law” is the exclusive province of lawyers and
judges, not politicians or voters.

Liberals internalized this idea after President Franklin Roosevelt’s
Supreme Court appointees vanquished their predecessors’
anti-regulatory activist “Lochner-era” version of the
Constitution. The court, under Chief Justices Earl Warren and Warren
Burger, reclaimed an activist role, this time to vindicate individual
and minority civil rights and liberties. Now deeply embedded, this
model is an axiomatic assumption.

However, it’s incorrect. Liberals’ phobia about mastering and
publicly messaging constitutional and legal claims is _ahistorical_.
Not only do their current adversaries on the right assiduously wrap
themselves in the Constitution and ignore the idea that certain
discussions are somehow gauche; liberals’ own ideological
predecessors did likewise. Icons such as Franklin and Theodore
Roosevelt, Abraham Lincoln, and the original Framers, including
Jefferson and Madison as well as Washington and Hamilton, crafted
legally sophisticated but politically canny characterizations of the
text and Framers’ design of the Constitution and relevant laws. They
had public exchanges that echoed across the media and an electorate
that observers from de Tocqueville onward have long recognized is
idiosyncratically inclined to view political issues through a legal
and constitutional lens.

How did today’s liberals come by their historically aberrant
aversion to mixing law with politics? To some extent, they are victims
of their own success. Once FDR’s appointees proclaimed fealty to
“judicial restraint,” mandating a near-total hands-off all
economic and other regulatory and safety-net laws and actions, liberal
politicians, advocates, and constituencies concerned about pocket-book
and other regulatory issues came to take for granted that all battles
concerning their priority interests would be fought and resolved on
Capitol Hill and by federal administrative agencies, or by their state
and local counterparts. None imagined that judicial interference would
impede these designs.

But history played out a different way, as civil rights and liberties
advocates took the opposite tack. They seized upon an exception to
judicial restraint that the Roosevelt court mentioned in a footnote to
a 1938 decision, for controversies about individual and minority civil
rights and liberties. Citing this footnote, advocates prodded the
justices to reinvigorate national citizenship and equality protections
in the Bill of Rights and the Fourteenth and Fifteenth Amendments. The
Warren and Burger Supreme Courts responded in the affirmative, with
repeated blockbuster decisions—most prominently, _Brown v. Board of
Education_, that ended state-sponsored racial segregation in 1954.
When popular backlashes turned into political culture wars, this set
of liberal leaders favored courts as their champions and the
battleground on which their interests were most likely to be
protected.

Unsurprisingly, these liberal culture warriors heard the right’s
condemnation of “judicial activism” as simply code for quashing
the rights they had either secured or sought: gender and racial
equality, procedural due process, and, especially abortion. As they
grew more uncomfortable being labeled as “activists,” they
overcorrected by devoting fewer resources toward vilifying the
increasingly conservative court’s increasingly aggressive
evisceration of statutory guarantees important to middle- and
working-class constituencies.

For their part, advocates for such consumer, employee, and
environmental causes were hard-pressed to summon the resources or
experience to effectively oppose the ever more doctrinally audacious
assaults waged by well-funded litigators from the U.S. Chamber of
Commerce and other hard-line business groups. Many simply lacked the
expertise or inclination to dissect and expose the _unlawfulness_ of
the claims of their adversaries. By the final quarter of the twentieth
century, the exception appeared to have swallowed the rule. Endlessly
repeated, and at best half-heartedly answered, the right’s labeling
of the court as a bastion of “liberal judicial activism” gained
widespread currency.

It was not always like this. Indeed, it was never like this. In the
past, when the fundamental direction and structure of government was
in play, great liberal leaders took their constitutional case directly
to the public. Consider the messaging strategies deployed by FDR and
his allies: Following the high court’s invalidation of the 1933
National Recovery Act, Roosevelt opened his next fireside chat by
voicing “a hope that you have reread the Constitution [which] like
the Bible, ought to be read again and again.” He delved into the
Constitution’s text, quoted the dissenting opinions at length, and
concluded by saying, “I want—as all Americans want—a Supreme
Court that will enforce the Constitution as written, [not] amend the
Constitution by … judicial say-so.”

Eight decades before Roosevelt arrived on the scene, Abraham Lincoln,
as candidate as well as president, routinely furnished equally graphic
examples of deep-dive constitutional messaging, the most celebrated
example of which was his 1863 Gettysburg Address. In 1993, Garry Wills
dissected that 272-word_ _tour de force in his Pulitzer
Prize–winning book, _Lincoln at Gettysburg: The Words That Remade
America._ Wills contended that Lincoln’s aim was to read into the
Constitution, as a matter of public consciousness, the core passage of
the Declaration of Independence that laid out the “self evident
truths“ that “all men are created equal.” In fact, as detailed
by Sidney Blumenthal in his 2019 panoramic study of Lincoln’s
meteoric ascent in the late 1850s, _All the Powers of Earth_, this
project had been Lincoln’s consuming passion since well before he
entered the White House. On the stump, he hammered home that
commitment, backed by archival research and rigor rarely found outside
litigation briefs, with matchless rhetorical eloquence.

In an 1854 speech assailing the Stephen Douglas–sponsored
Kansas-Nebraska Act, which repealed the 1820 Missouri Compromise that
had banned slavery in new territories North of the Mason-Dixon line,
Lincoln stressed that Thomas Jefferson, author of the Declaration, had
also authored the Northwest Ordinance of 1787, which banned slavery in
all new territories, arguing that the Framers intended “We the
People” to include all people, not just whites. In his 1858 debates
with Douglas, Lincoln acquired a national reputation through his
compelling refutations of Douglas’s embrace of Taney’s whites-only
Constitution. Unafraid of parsing the text in a political forum,
Lincoln stressed that “nowhere in the Constitution, does the word
‘slavery’ or ‘negro race’ occur.” Lincoln argued that this
textual silence meant that that the Framers’ “purpose was that
[after slavery had, as the Framers expected, vanished] there should be
nothing on the face of the great charter of liberty suggesting that
such a thing as slavery had ever existed among us.”

Campaigning for the Republican presidential nomination, in his
February 1860 speech at Cooper Institute in New York City, Lincoln
documented that 21 of the 39 signatories of the Constitution supported
federal control over slavery in the territories, and that most of the
others were outspoken abolitionists, including Benjamin Franklin,
Alexander Hamilton, and Gouverneur Morris. He also cited a letter from
George Washington to the Marquis de Lafayette endorsing the
prohibition of slavery in the Northwest Territories.

Lincoln credited this Cooper Institute speech with propelling him to
the White House. A century and a half later, a National Constitution
Center panelist would label it “arguably, the most important speech
in American political and constitutional history.” For our purposes
here, the key point about the speech is that Lincoln’s erudition was
evidently much responsible for its outsize political impact. As
Blumenthal relates, “Four New York newspapers printed his speech in
full.… [T]he _Post _filled the front page with headlines of
Lincoln’s conquest: ‘The Framers of the Constitution in Favor of
Slavery Prohibition.’”

But Lincoln merely stood on a bedrock tradition of high-stakes
constitutional debates that roiled American politics. Our forebears
lacked a fear of mixing talk of the Constitution with political
argument. The Framers, in fact, pointedly made the Constitution terse
enough to run verbatim in newspapers and pamphlets, the better to
reach all levels of a critically attentive society.

And the Framers themselves were master publicists. Five of the “Big
Six” —Hamilton, Jefferson, Madison, Franklin, and John Adams, all
virtuoso politicians, were prolific writers of polemics ranging from
the Federalist Papers to the equivalent of modern op-eds and blog
posts. Though George Washington, the lead framer, authored few public
writings, he was always laser-focused on garnering media coverage to
maintain his public profile and advance his agendas. Chief Justice
John Marshall, authoritative interpreter and a major founding figure
himself, peppered his landmark opinions with headline-friendly sound
bites and even penned pseudonymous op-eds.

As it turns out, commingling constitutional law and partisan politics
has historically proven to be potent and revelatory. Roosevelt had no
concerns sharing the legal arguments penned by sympathetic judges with
the media and the public. Our Founders were steeped in this tradition;
the fruits of these arguments are arguably as important as our
founding documents themselves. Lincoln was happy to carry that baton,
weighing in with his own interpretations of the law in the hopes of
reshaping a divided nation. Critically, Roosevelt gave voice to the
idea that the Supreme Court can and _should_ be accountable to the
people—and the Republic did not implode.

Today, a radically reactionary, unrepresentative movement has
precipitated a “constitutional conversation” potentially as
consequential as those in which past liberal leaders engaged
brilliantly, and prevailed. So far, liberal political leaders have
turned a deaf ear. To keep this one-sided “conversation” from
becoming a constitutional catastrophe, liberal leaders must step up as
their predecessors did by troubling themselves to learn and message
such lawyerly points, and trust the media and voters to digest them.
It’s a skill they need to reclaim from the nation’s founding, to
preserve its future.

_SIMON LAZARUS served as associate director of President Jimmy
Carter’s White House Domestic Policy Staff, and since then with
private and public-interest law firms in Washington, D.C._

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