Neal Milner: How Progressives Can Cope With The Loss Of A Friendly Supreme Court - Honolulu Civil Beat


About the Author

Neal Milner

Neal Milner is a former political science professor at the University of Hawaii where he taught for 40 years. He is a political analyst for KITV and is a regular contributor to Hawaii Public Radio's "The Conversation." His most recent book is The Gift of Underpants. Opinions are the author's own and do not necessarily reflect Civil Beat's views.


Opinion article badgeProgressives are in a crisis of faith because the foundation of this faith has crumbled.

The last half of the last century were glory years for progressives and the legal system. The U.S. Supreme Court was the beacon.

Abortion, separation of church and state, civil rights, rights for people with disabilities — they all emanated from a Supreme Court that saw expansion of rights as its mission.

Relying on the court became an act of faith. Why not? The Supreme Court was the haven of justice in a heartless world.

But now?

This is what Erwin Chemerinsky, the dean of the University of California, Berkeley law school, recently asked about himself and his fellow progressive law professors:

“What do we teach students when we have no faith in the Supreme Court?”

That statement sounds more like something that people historically oppressed by the legal system would say. Or how social conservatives thought about the court not so long ago.

It sounds that way because in fact things are that way. When it comes to the law, liberals have become a marginalized group alienated from the legal process.

A court with a liberal majority, those were the days. But those days are over. They won’t be back. Time to learn what to do, given those new realities. It’s time to move on.

To do so, I’m going to offer five strategies. Some are, for most people, unconventional and risky because they go against what people believe about the law’s power and goodness.

Taken together, they require skepticism about the law’s effectiveness, seeing the legal process as the problem rather than the solution.

Here are the five R’s of a new progressive legal strategy: reform, resistance, relocation, reframing and renewal.

Reform

There has been a lot of pressure from progressive circles to change the Court’s makeup by increasing the number of justices and taking away their lifetime tenure.

In September, the President’s Commission on the Supreme Court of the United States issued its report. Though the commission made no recommendations — it was not supposed to — there were many discussions about ways to reform the court.

Progressives looked to the Supreme Court as a reliable ally. No more. Flickr: Ted Eytan

Some were nuts and bolts like changing the Constitution so that justices no longer have lifetime tenure or increasing the number of justices, which Congress can do.

For progressives it may be tempting to focus on making these changes because they are concrete and easy to understand. We can do something right now!

But these reforms are at best long-term. Eliminating lifetime tenure needs a constitutional amendment. Congress can pass a law changing the number of Supreme Court justices. But in this Congress?

The commission did go beyond these usual discussions of court reform. The commission members — they ranged mostly from center right to center left — agreed that the Supreme Court was in a very dark, dangerous and vulnerable place. So, they put on the table many ideas about reform that usually get little attention.

These new ideas may now be in the wind, but they are still just ideas.

In short, reform is a conventional way to go about political business. If that’s all you are comfortable with, fine. It’s not risky. Just remember how unlikely it is to work.

Resistance

And speaking of risk, resisting court decisions by not complying with them or encouraging disobedience is another strategy. It has a long history at least from the underground railroad to many places, mostly in the South, that continued to allow prayer in schools even after the Supreme Court outlawed it in the 1960s.

Sometimes it is a governor standing at the schoolhouse door. Sometimes it’s a police officer subtly skirting the Miranda warning. Or protestors carrying out disobedience.

And sometimes it is people giving illegal abortions, which was true before Roe v. Wade, and it will certainly be more so the case if the present court overrules Roe and allows states to prohibit abortions.

Could safe, illegal abortions become part of the progressive agenda, an underground railroad of sorts?

Do law professors who no longer have faith in the court choose to counsel students how to violate the court’s decisions?

Resistance to law may be as American as apple pie, but it is still outside the norm. Still, if liberals no longer have faith in the court, resistance becomes one possible option.

Relocation  

Relocation is a strategy that avoids such a stark option — but at a cost.   

During the good years of legal liberalism, the Supreme Court was the place to go. “We’ll take it all the way to the Supreme Court” was not bluster. It was strategy.

No more. Now progressive legal strategies are about playing defense and keeping cases out of the court’s hands.

If the Supreme Court refuses to recognize a right or takes one away, an alternative is to fight state by state, relying on state courts to protect these rights in their own jurisdictions.

That’s likely to be the situation after the Supreme Court makes its upcoming ruling on abortion, which will place more limits on a national right to abortion even if it does not actually overrule Roe v. Wade. States will then have the option to allow or prohibit abortions.

It could lead to 50 battles in 50 states. A woman in Mississippi or Iowa wanting an abortion would probably have to go somewhere else to get one.

It’s insulting to progressives to call this strategy even a half loaf. But it makes sense to consider that even a part of a loaf is better than none.

Reframing

Back in those good days, liberals did so well in the legal process that the period is often called the “the rights revolution.” They won, so rights were on their side.

Technically, maybe, but not really. People and groups on the other side found ways to use the language of rights even if court decisions went against them — just as they always have.

By losing the court, progressives have lost their moorings.

Anti-abortion groups created the notion that “a fetus has rights” even though the Supreme Court never said so. It became a device for mobilizing an anti-abortion movement.

Rights talk is a way of speaking that’s available to everyone regardless of what a court says. And the language is strong and stimulating. It encourages a sense of grievance, hostility and deprivation. It raises people’s aspirations.

Groups that the law historically has marginalized and oppressed, like labor organizers, African Americans, kanaka maoli, gays and lesbians, turned to rights talk because the language agitated and inspired people. So did people in the Bible Belt when the Court ruled against school prayer.

If progressives have lost faith in the Supreme Court but still have faith in rights, they need to keep using rights talk to regroup and renew.

Renewal

By losing the court, progressives have lost their moorings. That’s what happens when something you trust with your heart and soul turns against you.

This can lead to apathy, despair and disillusion. But loss of faith can push people into new ways of thinking and new ways of engaging the world.

Is this possible? Maybe, maybe not. Is it essential to try? There is no other choice.


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About the Author

Neal Milner

Neal Milner is a former political science professor at the University of Hawaii where he taught for 40 years. He is a political analyst for KITV and is a regular contributor to Hawaii Public Radio's "The Conversation." His most recent book is The Gift of Underpants. Opinions are the author's own and do not necessarily reflect Civil Beat's views.


Latest Comments (0)

According to the Pew Research Center, the Progressive Left represent 6% of the public, 8% of voters in the 2020 election and 12-15% of the Democratic party. The simple fact is that this group is not at all representative of the majority of Americans or their political views. The ability of progressives to advance their agenda will be determined by their ability to convince others of the value of their policies.

Downhill_From_Here · 2 weeks ago

Thought provoking piece. Thanks Neal. The April 2022 Washington Monthly had another interesting take on this in Caroline Fredrickson's "The Too Supreme Court".

Robo · 2 weeks ago

My inclination is to see the proverbial glass as half-full. Justices Barrett, Kavanaugh and Roberts have repeatedly shown themselves to be intellectually sympathetic, or at least intellectually tolerant, toward key progressive causes. I would argue that the best course of action for progressives to get what they want from the Supreme Court and at the voting booth is to avoid being maximalist, purist and exclusionary.

Chiquita · 2 weeks ago

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