A pattern is emerging for liberal dissenters on the Supreme Court. Having lost a case, the justices — Elena Kagan and Sonia Sotomayor, who were joined this term by Ketanji Brown Jackson — warn of the costs of each mistake to the court’s public standing.
As a matter of both principle and strategy, this is the wrong choice for liberals on the court and for audiences tempted to cheer them on. Instead, the left-leaning justices should take a page from conservatives who were once in the minority and who argued that the institution was abusing its power and pre-empting democracy itself.
And the liberal justices should plead for — and thereby help legitimize — the imposition of external constraints on the Supreme Court’s powers.
Many Americans have been taught that the point of dissents is to guard the flame of alternative doctrine for “a future age,” as Justice Ruth Bader Ginsburg once put it. In the American myth, dissents are like messages in a bottle for a Supreme Court that has not yet come into being.
In a classic example, free-speech rights weredefended early in the 20th century in dissent by Oliver Wendell Holmes, before being embraced after his death. But the truth is that, first and foremost, dissents are political acts in their own moment. Our justices should be evaluated for the good (or harm) they do now.
The liberal justices today have recognized this, abstaining by and large from presenting alternative doctrine in cases on abortion or speech. Rather, the most notable liberal dissents lately have been about how conservatives are putting the Supreme Court’s legitimacy at risk.
Liberals centered worries about institutional legitimacy in Dobbs v. Jackson Women’s Health Organization, in which the court ultimately read abortion rights out of the Constitution’s protections. During oral argument, Justice Sotomayor asked whether the court could “survive the stench” that would be created should the conservative majority disregard precedent and decide the case in a way suggesting that “the Constitution and its reading are just political acts.” Liberal commentators called Justice Sotomayor’s remark “shocking” and heaped praise on her for standing up not only for abortion rights but for the rule of law.
In their dissent, not only did Justices Kagan, Sotomayor and Stephen Breyer avoid building future doctrine (for example, an Equal Protection Clause rationale for abortion protections) to focus on keeping Roe v. Wade on the books. They also lavished praise on Roe’s 1992 successor, Planned Parenthood v. Casey, for defending continuity — rather than disruption in the law — as a generally necessary feature of a legitimate court.
In a remarkable passage praising earlier conservatives for blinking instead of overturning Roe, the liberals cited precisely these grounds. They “were judges of wisdom,” they wrote, and continued: “If there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.”
Since Dobbs, the liberal justices have returned again and again to this theme. In remarks to the American Constitution Society, Justice Sotomayor urged her audience not to lose “faith in the court system,” expressing hope that the justices could “regain the public’s confidence that we — as a court, as an institution — have not lost our way.”
Similarly, speaking to an audience at Northwestern University Pritzker School of Law, Justice Kagan warned that the court’s legitimacy was at risk if its decisions were seen as an “extension of the political process.” The Supreme Court must “act like a court,” she remarked, as if the gravest sin of the law is when it seems like politics instead. The court fails in this regard, Justice Kagan explained, when the body departs from precedent (except in “unusual circumstances”) or proceeds by “leaps and bounds” rather than “incrementally.” In saying so, she seemed to ally herself with her colleague, John Roberts, whose approach to judging has drawn widespread praise from liberal legal commentators for moving the law right steadily but less quickly than his fellow conservative justices.
This theme of philosophical inconsistency has continued into the current term, with the court’s newest member, Justice Jackson, receiving near-universal acclaim from liberals for her use of constitutional history in support of affirmative action and voting rights. During oral arguments for both sets of cases, Justice Jackson’s forceful insistence that the 14th and 15th Amendments accommodated race-conscious remedies after the Civil War worked to show that the stated commitment to originalism among right-wing justices was at odds with their political agenda of inventing a “colorblind” constitutional law.
Pointing out such hypocrisy is fair and even sometimes effective. The most striking feature of all this liberal dissent, though, is how fundamentally conservative it is. Bucking up an institution in crisis precisely because it continues to fail liberals is to choose not to do other things in dissent. So is owning conservatives by suggesting that their interpretive methods could serve liberal ends if there were more liberal votes.
These appeals by the justices to institutional legitimacy are part of a broader conversation about judicial reform that is both more heated and more serious than it has been in nearly a century. Democrats remain divided on what (if any) reforms are needed. But a consensus seems to be emerging, at least among progressives, that it is necessary and appropriate to treat the justices as political actors, and increasingly, to limit the court’s authority given its status as an undemocratic and historically reactionary institution.
Among the liberal justices, by contrast, reform is acknowledged only as something to pre-empt through exercises in self-restraint. They have locked horns with their reactionary colleagues while agreeing with them that the Supreme Court should remain the arbiter of its own enormous power to do good or ill — even though, as Justice Sotomayor disarmingly pointed out during the Dobbs oral arguments, “There is so much that is not in the Constitution, including the fact that we have the last word.”
Similarly, they have invoked the spirit of the arch-conservative Justice Antonin Scalia when it serves their purposes — in Dobbs, to doubt the majority’s reassurance that canceling abortion rights would not put other rights on the chopping block. Yet the liberals have not adopted a democratic attack on judicial power that he developed. At stake inone case, he remarked in dissent, was “the power of our people to govern themselves, and the power of this Court to pronounce the law.” Nor was he above issuing warnings when he thought the problem was the other side’s self-aggrandizement at the expense of self-rule. “I write,” he began another incendiary dissent, “to call attention to this Court’s threat to American democracy.” Justice Scalia’s hypocrisy was that he made such claims selectively. But today’s liberals do not make them at all.
If they don’t, the public should. The future of Supreme Court politics under conservative control — or liberal, if the balance between right-wing and left-wing justices on the bench changes — ought to be about more than which outcomes are reached case by case or which philosophies are cited to rationalize them. It ought to be about who should enjoy the power to decide the content of the law in a democracy.
Amid a political movement for reform — whether it’s more justices, or jurisdiction stripping, or both — invocations of democracy by the liberal justices would also have much more credibility. Far and away the most consequential thing the three liberal justices could do would be to call upon Congress and the president to confront this excessively powerful body, either through legislation or executive defiance.
For the liberal justices themselves to express a loss of faith in this fundamentally illiberal institution would meaningfully help promote consensus among Democrats that the court itself is an obstacle to progress.
Ryan D. Doerfler of Harvard and Samuel Moyn of Yale are law professors.
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