Resisting the Juristocracy

Sam Moyn in The Boston Review:

Affirmative action will be the first to go, with Justice Kavanaugh’s vote. A federal abortion right is also on the chopping block, with the main question remaining whether it will die in a single blow or a succession of smaller ones. The First Amendment will continue to be “weaponized” in the service of economic power, as Justice Elena Kagan put it last term. And the rest of constitutional law will turn into a defense of business interests and corporate might the likes of which the country has not seen in a century.

Which brings us back to Franklin Roosevelt’s mistake and our opportunity. The last time the court was converted into a tool of the rich and powerful against political majorities, Roosevelt tried to pack the court. Once the Democrats had finally gathered enough political will to stand the Court down, Roosevelt told the American people in March of 1937 that it was time to “save the Constitution from the Court and the Court from itself.”

But the Constitution is what got us here, along with longstanding interpretations of it such as Marbury v. Madison that transform popular rule into elite rule and democracy into juristocracy. Only because of the constitution do Democrats have to battle in a political system in which minorities take the presidency—twice in our lifetime. Only because of a cult of the higher judiciary do Democrats find themselves facing an all-powerful institution set to impose its will on a majority of Americans who would decide things differently.

More here.