Today, The Atlantic published an important new article by constitutional law expert and Open Markets Strategic Councilor on Democracy and Power, Caroline Fredrickson, “What I Most Regret About My Decades of Legal Activism.” In her piece, Fredrickson describes how progressives, including herself, largely misunderstood the Right’s strategy to take over the U.S. Supreme Court and use it to impose radical changes on the American people.
For decades, Fredrickson writes, liberals had “tunnel vision,” and focused almost solely on fights to protect social and civil rights while all but entirely neglecting the Right’s simultaneous attacks on political economic freedoms that date to the founding of America.
The result was a simple business model that drove a revolutionary remaking of American society: On one hand, anti-abortion politics helped to guarantee political control of key states. On the other, attacks on traditional antimonopoly laws and rules allowed the Right to collect millions from pro-monopoly donors, which they then used to fund the Right's war on our civil liberties. As Fredrickson explains:
“The conservative legal movement was just as intent on dismantling the political-economic achievements of the New Deal era as it was on reversing the rights revolution,” ... “And its leaders understood that they could leverage each goal to help achieve the other. To culturally conservative voters, they vowed to appoint judges who would overturn Roe. At the same time, much more quietly, they assured large corporations and economically conservative billionaires that these same judges would also be hostile to unions, business regulation, class-action lawsuits, and antitrust enforcement.”
The problem continues today. Fredrickson writes that the disregard for economic power has become so extreme among progressives that most of today’s Democratic-appointed judges are still fall “far to the right of their own liberal predecessors” on economic issues.
“By delivering measurable wins to business-side conservatives, they [referring to Democratically-appointed judges] have helped fuel an engine designed precisely to unravel the civil rights they held so dear. The more the courts favor big business, the more powerful big business becomes, and the more powerful big business becomes, the more financial support it can lend to the right-wing legal movement.”
And while Fredrickson commends President Biden for nominating judges of more diverse racial and ethnic backgrounds, she also challenges the President to prioritize judges who champion economic freedoms and uphold the letter of our antitrust laws. For instance, earlier this year a Biden-appointed judge cleared a merger between Microsoft and the company Activision Blizzard, which the Biden Federal Trade Commission opposed.
For Fredrickson, The Atlantic article also serves as a difficult personal confession. For more than 10 years, she served as president of the American Constitution Society, which was created to directly counter the legal and judicial programs of the right-wing Federalist Society, but which clearly failed to do so. Based on that experience Frederickson concludes with a plea to other progressives.
The time has come, she writes, to “recognize that preserving constitutional freedoms depends on winning the fight for economic liberties. Treating them as separate goals will ultimately mean losing out on both.”
Caroline Fredrickson is a constitutional law expert, a Distinguished Visiting Professor from Practice at Georgetown Law, and a Strategic Councilor on Democracy and Power at the Open Markets Institute. In 2021, she was appointed a member of the President’s Commission on the Supreme Court of the United States. For a decade, she served as the President of the American Constitution Society (2009-2019).
