A Court That Will Not Allow National Majorities To Govern Is Not Legitimate

Good piece by Bouie about the potential for a major conflict between the Supreme Court and the elected branches:

Will this stronghold of conservative jurists stay its hand as Democrats embark on their plans and agenda items? Or will these judges strike back, curtailing the policies of the Democratic majority and trimming the sails of its ambition, forcing the public to conform to their particular understanding of the Constitution despite equally valid alternatives? Will Democrats, in other words, relive the experience of Franklin Roosevelt’s first term, stymied by judges and justices whose vision of “liberty” rejects the right of the people to shape their collective economic lives?

What lies over the horizon isn’t just a fight over the meaning of the Constitution; it’s a fight over the power to interpret it. Right now, it appears that power rests with the Supreme Court and its conservative majority. But past presidents have contested the court’s predominance, both before and after winning the presidency; they’ve challenged the idea that its decisions constitute, as Abraham Lincoln said speaking against the Dred Scott ruling during one of his debates with Stephen Douglas, a “rule of political action, for the people and all the departments of the government.” They’ve declared, as Andrew Jackson argued when he vetoed the Second Bank of the United States, that they will support the Constitution as they understand it, “not as it is understood by others.”

Progressives have a crucial task ahead of them — not merely to defeat Trump and Trumpism, but to reclaim the Constitution and advance a more expansive vision of democratic freedom, in which Americans have inalienable economic rights as well as inalienable political and civil ones. It’s a problem of power, which means it’s impossible to fight this conflict with Buttigieg-style technocratic reforms. Progressives must look, instead, to presidents and other leaders who resisted the Supreme Court’s claim to ultimate interpretive authority. And they must insist, as Lincoln did, that the people of the United States are their “own rulers.”

Judicial supremacy is neither desirable in theory not an accurate description of how constitutionalism works in practice, and if the Supreme Court attempts to usurp congressional prerogatives based on the idea that the Constitution requires Gilded Age economic policy a wide array of countermeasures need to be on the table.

And, of course, Bouie is giving the relatively optimistic scenario — in large measure because of the Supreme Court, Democratic majorities getting full control of Congress has become enormously difficult.