Abstract
In the 1930s, like today, our nation faced a crisis of oligarchy: too much wealth and political power concentrated in too few hands. Like today’s liberals and progressives, the New Dealers aimed to enact social and economic reforms that would ensure a much broader distribution of wealth and power, but they faced a hostile, right-wing Supreme Court that would certainly thwart such reforms. Thus, like liberals and progressives today, New Dealers proposed various measures aimed at curbing judicial review to safeguard the legislative reforms they saw as essential to making democracy work. Yet at the same time they hoped to preserve the Court’s power—which they hoped the Court would exercise—to defend civil liberties, protect vulnerable minorities against state violence, and safeguard the rule of law in a moment of rising authoritarianism.
This Article argues that this New Deal moment contains significant lessons for liberals and progressives today, who are once again arguing for curbing the power of a hostile, right-wing Supreme Court—while at the same time continuing to hope and demand that that same Court use its authority to thwart some of the government’s more extreme violations of the rule of law. Liberals and progressives must respond to the present crisis, but must also think about what kind of constitutional order, with what kind of Supreme Court and federal judiciary, exercising what kinds of power, we hope to build. This Article surveys the various answers in present-day debates, from abolishing judicial review, in part or whole, to reforming selection procedures to “balance” the Court. We argue, drawing on the work of the New Dealers, for a more flexible and pragmatic approach that takes the Court seriously as a political body—one that can sometimes be persuaded to back off through political confrontation. The present Supreme Court has done much—from eviscerating campaign finance and anticorruption law to attacking the administrative state—to lay the groundwork for oligarchic rule. The solution, we argue, is not to eliminate the Court’s power of judicial review or to pursue technocratic reforms that aim to put the Court above politics. Instead, liberals and progressives should lay the political groundwork now for confronting the Court through constitutional politics.
