Daniel Hemel Offers Progressive Arguments that Could Sway a Conservative Supreme Court

A Progressive Yankee in John Roberts’ Court

Brett Kavanaugh’s confirmation will push an already conservative Supreme Court even further to the right. Progressives can expect to be on the losing end of several landmark decisions over the next few years. Frustration will ensue, and justifiably so. Hopefully that frustration will mobilize progressives to vote in elections, volunteer on campaigns, open their checkbooks, and run for office—and thereby ensure that progressives control the White House and the Senate when the next several Supreme Court vacancies arise.

What to do in the meantime? We could try to pack the Court, though we won’t make progress on that front until after the 2020 elections (and even then, the prospects for a progressive majority on the Senate side are bleak). We could try to impose 18-year term limits, though it’s doubtful that we can accomplish that result without a constitutional amendment and even less likely that such an amendment would garner the support of three-quarters of the states. We could attack the legitimacy of judicial review, though we’ll have to cope with cognitive dissonance if we do. After all, most of us think that nine unelected justices can legitimately strike down federal and state laws that violate the Constitution. It would be very hard for us to defend—much less extol—decisions such as Brown v. Board, Roe v. Wade, and Obergefell v. Hodges if we thought otherwise.

Or we can do what most of the writers for this blog (and many of the readers too) have trained for years to do. We can continue to pursue incremental change through litigation in state and federal courts. When cases reach One First Street, we can press our arguments there, with the understanding that we are likelier to lose than we were before but we are sure to lose if we don’t show up.

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