Brett Kavanaugh is now a Supreme Court justice. Despite multiple credible allegations of sexual assault and a bizarrely aggressive testimony before Congress, he was confirmed and sworn in earlier this month.
In addition to widespread concerns about what the Supreme Court’s rightward shift will entail, the baldly partisan nature of Kavanaugh’s defense has many in the legal academy reflecting on whether and in what ways the American judiciary is a political institution. Many progressive left lawyers argue that of course the judiciary is political, and that that’s a good thing: while most judges are “classist and elitist,” the “Constitution has changed many times without amendment, in part because judges are themselves shaped by the world around them and responsive to the Court’s need for legitimacy.”
This perspective, generally called “popular constitutionalism” or “democratic constitutionalism,” contains important insights about the power ordinary people can sometimes wield over judicial decision-making and the dominant understanding of the Constitution. Yet it fails to explain how that power is exerted and what role that power plays in the broader framework of American governance.
Contrary to proponents of popular constitutionalism, the cases in which bottom-up pressure moves the courts aren’t proof that the system works — they’re evidence of a fundamentally anti-democratic and anti-egalitarian oligarchy faltering, its fault lines exposed. Understanding this dynamic is vital to fashioning a strategy that can confront an increasingly right-wing Court.
The Two Flaws
Democratic constitutionalism is rooted in a belief in the basic soundness of the US constitutional system, whatever its ups and downs. Because “the Constitution depends on its democratic legitimacy,” Reva Siegel and Robert Post write, the US has “traditions of popular engagement that authorize citizens to make claims about the Constitution’s meaning and to oppose their government…when they believe that it is not respecting the Constitution.”
This dynamic, they argue, has “historically shaped the meaning of our Constitution.” Examples include Roe v. Wade and the cultural fight over abortion, the judicial recognition of same-sex marriage, and Franklin Roosevelt’s victory over a conservative Supreme Court majority that had stymied his New Deal legislation. Siegel adds the Equal Rights Amendment to that list, arguing convincingly that despite the amendment’s failure, it was de facto established through the work of the 1970s and ’80s women’s movement, culminating in the defeat of Robert Bork’s Supreme Court nomination.
These scholars identify an important dynamic. Popular pressure does matter, and it does affect how judges rule. The courts are not an ethereal body, removed from the rough and tumble of democratic politics. But the popular constitutionalist account suffers from two major flaws, both of which hinder our ability to push back against a reactionary judiciary.
The first concerns what drives those in power to respond to popular will. Liberal scholars argue that “constitutional culture,” formed through “popular deliberation about constitutional questions,” is the impetus. Much of this conception springs from the idea that the law is a societal meta-discourse, through which we collectively deem right and wrong. Things like a written legal code and a judicial system (and the threat of state violence to enforce them) are material commitments to the meta-discourse of the law, rather than the law itself.
Yet while culture often plays a key role, it is always secondary to the material interests of the ruling class. The famed “switch in time that saved nine” — the reversal of Justice Owen Roberts during the New Deal to support the constitutionality of economic regulation — followed not only FDR’s court-packing plan, but also a wave of militant labor action across the country.
Even in those situations where the shift did seem primarily cultural, material conditions were a necessary determining factor, with wealthy elites unwilling to give in until they were convinced that the change in constitutional understanding would not hurt their material interests.
The example of the de facto ERA is illustrative. It was motivated in part by the material consequences of second-wave feminist organizing, including a growing willingness of an increasingly female workforce to fight against structural patriarchy on the job. It was spurred on by the increased relevance of those fighting sex discrimination in Democrats’ electoral calculations. But it wouldn’t have happened if capitalists hadn’t realized that having women in the workforce on a de jure equal basis to men would not impact their bottom lines, especially when de facto discrimination continued apace.
The second, more consequential, flaw is the misconception that the interplay between the people and the elites is a vital part of a functional constitutional structure — that the dynamic “serves important systems values” and its study “describes how our constitutional order actually negotiates the tension between the rule of law and self-governance.” The back-and-forth between the judges and the people is part of what makes it work, they argue. And even if the courts are less democratic than the other branches, they are democratic enough for the current order of things to be worth maintaining.
Not only is this flatly wrong, it is an extremely dangerous misunderstanding of the basic realities of US politics. The American system of government was designed to reinforce the power of property-owners and limit those without it. While 250 years of struggle has tilted things in a somewhat more egalitarian direction, the capitalist class — those whose income comes from extracting the labor value of workers through rents and employment — still enjoys an enormous, outsized say in the direction of the state. The vast majority of working-class Americans, meanwhile, are more of a semi-tolerated interloper, at best a junior partner and at worst (and more realistically) a pest to be mollified and suppressed.
What, then, should we make of the instances in which democratic pressure has changed legal and constitutional understandings? If business dominates, why doesn’t it always get what it wants?
The answer, again, is material. While the powerful do not want our political input, they do need something from us: our labor. Their wealth and power is predicated on their ability to extract a portion of the value of the work we do. They coerce our participation in this system by conditioning our survival on it — if you don’t work for someone it becomes hard to eat, and if you don’t pay rent to a landlord it becomes hard to have a roof over your head.
That coercion becomes much harder to maintain, however, when we collectively refuse to participate in and actively obstruct the functioning of this profit-making machine. The mere threat of disruption can be enough to scare the powerful into giving ground.
This is the basic relationship between the ruling class and the working class — and no less when it comes to the law. We should not ask whether the judiciary is democratically responsive in the way that other branches of the federal government are, because the other branches, like the judiciary, resist democratic influence and can only be forced to respond to it by a material threat to the continued functioning of the system.
The Travel Ban
One week after being sworn in, on Friday, January 27, 2017, Donald Trump issued an executive order banning the entry of people from seven predominantly Muslim countries. By that night, people were being detained at airports across the US while the government tried to figure out how to send them back.
A legal team quickly filed a lawsuit on behalf of all that were being held, a habeas petition seeking the release of the suit’s named plaintiffs, and a motion for an emergency temporary restraining order enjoining the application of the ban nationwide. (Full disclosure: starting that Saturday and for the next couple months, I played a small role on the legal team bringing the case.) The lawsuit argued that the travel ban was, among other things, unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The motion for an emergency injunction was heard that evening, and was then granted by a Brooklyn federal judge.
Some might attribute the swift injunction to the plaintiffs being unambiguously right on the law. Others might argue that there was a cultural shift in our communal ideas of how we should treat immigrants that made the travel ban particularly anathema to our legal principles.
But it seems obvious, not only in hindsight but at the time, that the catalyst for the emergency injunction was the mass actions at airports across the country.
Starting that Saturday morning, organizers called for people to go to JFK airport in New York to support those being detained. New Yorkers turned out in such force that Governor Andrew Cuomo shut down the Airtrain that transports people from the subway to the airport. New York taxi drivers went on strike, refusing to pick people up from both JFK and La Guardia, which was also soon inundated with protesters.
The protests quickly spread across the country, with people seeing airports not only as locations where people were being denied their rights but as sites of resistance. By nightfall, the nation’s airports, key nodes for the functioning of the economic system, were at a standstill. When Cuomo closed access to JFK on Saturday afternoon, organizers and the legal team directed people to the Brooklyn federal courthouse for the hearing; people filled the courtroom and the plaza outside, where a lawyer on the case announced the nationwide injunction to rapturous applause and chants.
The events of that Saturday reveal the material nature of the relationship between the people and the courts. In that moment, we managed to sway the actions of the judiciary not through a culture shift, not through deliberation that changed the hearts and minds of elites, but through mass action that imperiled the operation of the established order. It strains credulity to argue that the system was designed to function in this way; rather, the ability of the people to momentarily compel the forces of reaction to stand down shows the vulnerabilities of an order designed to prevent precisely that.
Further evidence of this can seen in the weeks and months after that decision. As the legal case stretched on and people demobilized, there was no longer the looming specter of mass action. With bottom-up pressure waning, the Supreme Court ruled that the Trump administration could institute a version of the travel ban.
Both the brief, momentous defeat of the Trump administration and its ultimate victory highlight the key difference between the popular democratic and the material understanding of the democratic constitutional dynamic: where the first argues that the initial injunction demonstrated the system works and should be maintained, the latter sees it as evidence that the system doesn’t — and shows a path forward to radically change it.
Mass Action and Socialist Strategy
What is that path? What lessons can socialists take from understanding this material dynamic?
Most importantly, mass action is the most powerful tool we have. If we want to overcome a reactionary judiciary, we need to focus on building a mass movement that can bring to bear the power of collective action in a sustained, focused, and disciplined way. That goes for the executive and legislative branches, too. We have far greater power in our ability to bring the system to a standstill than to vote a single elected official out of office.
A mass action approach can also turn this moment into a powerful jumping-off point. As Peter Camejo has written, a mass action strategy focuses on “unit[ing] people in action around the issues on which they’re moving.” Moving people to action on one issue can start to radicalize them around all interconnected issues, while shifting their overall politics leftward. Right now, many people are dismayed and furious over the confirmation of Kavanaugh. Appealing to righteous anger in order to move people to action can bring many people into direct struggle with the powers that be and can help shift people’s politics.
That direct confrontation with capital will not immediately be on the scale of, say, a nationwide general strike; in the course of building this movement we will need to fight for reforms. But we will fight for them in ways that help us build the mass power that we need. We will demand changes that not only materially benefit the working class, but that also strain the system’s ability to function and push us toward a revolutionary rupture.
The strains in the system that the democratic constitutional dynamic helps expose are ideal places to start, and the dramatically decreased legitimacy of the Supreme Court and the judiciary in general offer another place to push. Packing the court, for instance, could be a demand that could both move the Supreme Court left and also build political consciousness around the desirability of bringing state power under democratic control.
But all this work, including pressing for short- and medium-term reforms that make life better for everyone, must have as a key component the building of a mass movement capable of taking class-wide action — action that can force those in power to loosen their hold on the system and open up space for dramatic, democratic change.
The Way Forward
On the afternoon of October 5, at 2 PM central, Maine senator Susan Collins began delivering a speech on the Senate floor where she announced her support for Brett Kavanaugh, assuring his confirmation. Fifteen minutes earlier, a Chicago jury had convicted police officer Jason Van Dyke of second-degree murder and sixteen counts of aggravated battery, one for each bullet he fired into Laquan McDonald.
The Van Dyke trial was the result of years of organizing, of moving thousands of Chicagoans into struggle against the Chicago Police Department, the state’s attorney, and Mayor Rahm Emanuel — agents of capitalism if ever there were any. The people of Chicago, particularly a black community that the city’s elites were used to suppressing and ignoring, forced the city to indict a police officer for murder, a first. And a movement that had made getting rid of the police superintendent, the state’s attorney, and the mayor who oversaw the coverup of McDonald’s murder as one of its key goals is likely to be three for three by May.
Compare that to the resistance to Kavanaugh. Although the experiences of hundreds of brave activists who took arrests and occupied senators’ offices may well push them left and lead them to work toward building mass power, the campaign to challenge Kavanaugh itself, relied on appealing to and shaming senators in hopes of getting them to look to their heart and do the right thing. It fell flat.
As I marched with two hundred Chicagoans that Friday afternoon — as we forced a police cordon to back down, allowing us to shut down Michigan Avenue, celebrating this victory and continuing to press for further changes to a system that had long seemed immovable — I knew which vision of change, which strategy for moving a seemingly intransigent source of oppression, gave me more hope.