The Too Supreme Court

The Supreme Court of late has radically undercut laws protecting voting rights, reproductive health, and limits on religion’s role in the public sphere. Less visible to many Americans, it has also substantially weakened our ability to regulate business and check the growth of corporate monopolies, thereby abetting growing extremes of inequality.

For some of us, the answer is to change the judges, limit their tenure, or expand the Court to counteract the pernicious influence of the reactionaries currently serving. I was a member of President Joe Biden’s Supreme Court Commission, which studied such reforms and support all of the above. But Americans should also recognize that the problems with the Court go far beyond just who is on it and their terms of service. 

In their brilliant new book, The Anti-Oligarchy Constitution, Joseph Fishkin and William E. Forbath challenge the prestige and legitimacy that today’s liberals still largely ascribe to the Court as an institution. Liberals learned to revere the Court’s role in American society in the mid-20th century when, starting with Brown v. Board of Education, it began a string of decisions that established constitutional guarantees of fair treatment for Black people, women, and other historically marginalized minorities. But along the way, Fishkin and Forbath argue, liberals began embracing two propositions that reformers throughout most of American history never ascribed to and that frustrate progressive change today. 

First, we have come to believe that constitutional law is a narrow, technical field properly controlled by elite legal experts. Politicians and activists pitch their causes to the courts and accede to letting Supreme Court justices, as opposed to democratic processes, ultimately decide what is and is not constitutional, whether it’s a law mandating vaccination or one limiting marriage to members of the opposite sex. 

Second, we adhere to an interpretation of the Constitution under which Congress operates under no constitutional requirement to advance goals, such as equality of opportunity or a broad, prosperous middle class, that are necessary to the functioning of a healthy democratic republic. Today’s liberals, for example, argue that the Constitution permits the federal government to mandate that workers and their employers contribute to the Social Security system, and we seek to appoint judges who agree with us. But few imagine that the Constitution requires Congress to pass laws that will protect citizens from poverty in old age, any more than we imagine that funding the Webb telescope is constitutionally compelled. 

Yet such attitudes would have baffled reformers in the past, from Jacksonian Democrats and radical abolitionists to prairie populists and New Deal liberals, who all advanced their agendas by appealing to the egalitarian principles and requirements they saw contained in the Constitution. Fishkin and Forbath refer to this history as the lost “democracy of opportunity” tradition of constitutional law. It rested, they show, on the once nearly universal belief among our liberal forebears that preserving a healthy republic, and, by extension, the Constitution itself, depended on a political economy in which the broad mass of citizens enjoyed avenues of upward mobility and protection from domination by oligarchs, monopolists, and other malefactors of great wealth. It’s an all-American but now largely forgotten creed, the authors argue, that today’s generation needs to—and can—recover. They write that we are now at a propitious moment to build a multiracial coalition that will re-democratize constitutional law and make the Supreme Court once again serve egalitarian ends. 

The authors were colleagues for many years at the University of Texas at Austin School of Law, where Forbath continues to teach both law and history; Fishkin has moved to UCLA. In addition to their UT connection and law degrees from Yale, both also have doctorates—Fishkin’s in politics from Oxford and Forbath’s in history from Yale. 

This background helps to explain their approach, which dwells heavily on reconstructing how Americans up until about the mid-20th century viewed law and economics very differently than we do now. Our forebears divided, often violently, over many issues, including slavery and who should and should not enjoy the right to vote. But there was near-universal assent to the proposition that democracy would degenerate into demagoguery unless those who were entrusted with the vote had enough financial independence to avoid servility to the rich and powerful. From this followed that it was the duty of any democratic government to oppose monopoly and otherwise structure markets to foster a broad, propertied middle class. It’s a tradition of thought that is neither liberal nor conservative as we understand those terms today, and that has become all but forgotten, although some recent books, including Ganesh Sitaraman’s The Crisis of the Middle-Class Constitution and Barry Lynn’s Liberty From All Masters, have also begun the process of excavating it and showing its relevance to today’s progressive movement. 

Fishkin and Forbath trace the tradition back to the dawn of the republic, when revolutionaries were infused with anti-aristocratic ideas. Noah Webster, neither a hothead nor a radical, notably said, “The basis of a democratic and a republican form of government is a fundamental law, favoring an equal or rather a general distribution of property.” Further, he said, 

an equality of property is the very soul of a republic—while this continues, the people will inevitably possess both power and freedom; when this is lost, power departs, liberty expires, and a commonwealth will inevitably assume some other form. 

According to Fishkin and Forbath, that “every well-informed revolutionary” held these views helps explain why redistributive republican ideals infused state constitutions as well as the federal one. 

The democracy of opportunity tradition also found plenty of expression in the Jacksonian era. President Andrew Jackson’s fight against rechartering the national bank is often described as based on states’ rights, but this approach, the authors write, neglects an important aspect of his efforts: “Entwined with that battle was a constitutional debate about the nation’s distribution of opportunity, wealth, and power.” Jacksonians took their arguments against the bank’s constitutionality to the courts, state legislatures, and Congress, arguing that, in the words of Congressman John Bell of Tennessee, “the accumulation of great wealth in the hands of individual citizens” undermined the “equality of rank and influence” that is “the fundamental principle upon which [our government] is erected.” 

Their opponents, the Whigs, also embraced this principle, pointing to the Constitution’s “general welfare” clause, and differed only as to the best means of achieving it. In arguing for tariffs, as well as for the building of roads, canals, and other infrastructure, John Quincy Adams contended that Congress not only possessed the power but was obligated by the Constitution to protect nascent industries and their workers, because that would in turn foster a broad middle class on which a constitutional republic depends.

In the middle of the 19th century, members of the newly formed Republican Party, like the Whigs before them, rested their argument against slavery and for the broad distribution of public lands on the democracy of opportunity tradition. As the debate over the western territory and slavery turned to war, Radical Republicans saw in the guarantee clause—the assurance of a republican form of government to every state—a requirement that Congress provide both “basic civil rights and … basic social goods to secure the freed people in their freedom.” 

After the Civil War, Radical Republicans again appealed to the democracy of opportunity tradition in arguing not only for passage of the Thirteenth, Fourteenth, and Fifteenth Amendments but also for statutes specifically designed to attack inequality. These included the Civil Rights Act of 1866, which ensured formal liberty of contract and the right to property, and the second Freedmen’s Bureau Act, also in 1866, which established free schools and called for “unoccupied public lands” to be provided to “loyal refugees and freedmen.” Representative Thaddeus Stevens, who led Congress’s Joint Committee on Reconstruction, expounded that “the whole fabric of southern society must be changed … If the South is ever to be made a safe republic … How can republican institutions … exist in a mingled community of nabobs and serfs?”

Leaders of the fight for women’s suffrage and legal emancipation also drew on this anti-oligarchic constitutional vision, with the Reconstruction amendments adding force to their demands. Susan B. Anthony called men’s domination of women an “oligarchy of sex, which makes the men of every household sovereigns, masters; the women subjects, slaves.” In addition to the newly adopted Fourteenth Amendment and its promise of equal protection, Anthony argued that barring women from voting was antithetical to the guarantee clause and its promise of republican government. 

Populist and progressive reformers at the end of the 19th century, facing a moment of great economic crisis and increasing disparities of wealth and power, drew on this same tradition, according to the authors, invoking the doctrine of equality laid down in the Declaration of Independence and the principle “imbedded” “in our Constitution [of securing] … the widest distribution among the people, not only of political power, but of the advantages of wealth, education, and social influence.” In arguing for the legislation that came to bear his name, Senator John Sherman leaned heavily on constitutional arguments, calling the trusts a major danger to democracy and arguing that their monopoly power was like “a kingly prerogative inconsistent with our form of government.” Progressives later used these same constitutional views to push through the amendments that created an income tax, the direct election of senators, and women’s suffrage. 

Opposing this constitutional tradition was a Supreme Court that grew increasingly reactionary during the decades between the 1870s and the 1930s. The Court’s infamous 1905 Lochner decision, finding unconstitutional a New York maximum-hour law, is only one of many where courts embraced a cramped interpretation of the Constitution to block a progressive change. The Court’s views reflected a shift of opinion, starting in the 1870s, among northern elites away from the egalitarianism reforms of the Radical Republicans and toward a narrow, formalistic concept of freedom that benefited powerful industries while abandoning efforts to build racial equality in the South and rights for workers everywhere. This doctrine hardened over time, Fishkin and Forbath write, into “highly general and abstract legal-constitutional principles—above all freedom of contract and security of private property—along with precedents and reason to specify the conditions under which people, or lawmakers, were free to behave as they pleased.” Judge-made common law protecting contract and liberty thus became constitutional rules that could not be undone by elected officials. 

Like many progressives, President Theodore Roosevelt saw this “judicial supremacy” as serving oligarchy. In advocating for referenda to overturn Supreme Court decisions, Roosevelt called for the people to have “the real, and not merely the nominal, ultimate decision on the questions of constitutional law.” 

A generation later, President Franklin D. Roosevelt took up the fight against an overly powerful—and misguided—Supreme Court. Like his uncle, FDR grounded his arguments in a vision of the Constitution as a covenant to dethrone the “economic royalists,” whom he compared to “the eighteenth-century royalists who held special privileges from the crown.” FDR and other New Dealers consistently invoked specific provisions of the Constitution, such as the general welfare and equal protection clauses, to brush back Court objections to legislation like the Fair Labor Standards Act, the National Labor Relations Act, and the Social Security Act. 

After FDR threatened to expand the Court with new justices who would endorse his program, the Court stepped back from the brink in 1937 and acknowledged the power of Congress to address economic issues, in particular the crisis of the Great Depression. But despite that hard-fought victory, liberals over the next generation would wind up giving increasing deference to the courts. 

Why did this occur? The authors point to Brown and other landmark decisions made from 1953 to 1969 during the tenure of Chief Justice Earl Warren. Confident that a liberal majority could turn the Court into a vehicle for securing civil rights for Black people and other minorities, liberals unwittingly began to buy into the reactionary doctrine that judges, not voters, were the final arbiters of what is and is not constitutional. 

Also contributing to the shift in liberal attitudes toward the Court was the great postwar economic expansion of the middle class. From the end of World War II to the early 1970s, economic inequality in the United States fell dramatically. This caused leading liberals to become much less concerned than in the past about such once-high-voltage issues as controlling monopolies, and to entrust management of the economy to academically trained economists rather than democratically elected policy makers. As that occurred, they began to abandon the much older democracy of opportunity tradition of constitutional law as well. Thus began what Fishkin and Forbath dub “the Great Forgetting.”

As the 1970s advanced, however, the broad economic expansion that had reduced wealth disparities sputtered and slowed. Unions saw their power erode as libertarian trade agreements and deregulation began to shrink the middle class and particularly threaten non-college-educated workers of all races. At the same time, the composition of the Supreme Court began to become more and more reactionary. This was mostly because Republicans, empowered by an academic and public policy juggernaut funded by the right, appointed more and more reactionary justices who viewed the republic as grounded in rugged individualism, limited government, and private property. But the Court moved right also because even judges appointed by Democrats became increasingly in thrall to economic libertarianism. In the 27 years since President Bill Clinton nominated him to the Supreme Court, Justice Stephen Breyer, for example, has consistently voted to limit the use of antitrust laws to rein in monopolies. 

Today, many progressives are returning to an understanding of the critical importance of an anti-monopolistic agenda and other efforts to address systemic wealth disparities through public policy. This agenda is broadly popular with the public, but just as FDR saw much of his agenda, at least initially, thwarted by the Supreme Court, Biden now faces a similar challenge in moving forward. The current Court is determined to keep its views on economic “liberty” cemented into constitutional law. 

Fishkin and Forbath argue that the solution is for progressives and liberals to return to the democracy of opportunity tradition. We need our own positive vision of the Constitution that elevates popular rule and a broad middle class and that builds a “national community” by opposing oligarchic control. Their call to arms appeals to constitutional patriotism, showing how the Constitution can undergird, rather than impede, core commitments to equal citizenship, protection from domination, and broad avenues of upward mobility as the means to those ends. 

Some focus, to be sure, should be directly on the Court, including structural reforms such as expansion and term limits. But the authors write that our arguments for those reforms should be more than procedural. Rather than say we are just trying to get back at Republicans for “stealing a seat” from President Barack Obama, we should say that the reforms are needed to stop the Court’s perversion of the Constitution and of our system of republican government. 

The authors suggest other, more subtle mechanisms to rein in the Court, including limits on its jurisdiction and trigger statutes that substitute an alternative enforcement mechanism if the Court strikes down the law’s initial approach. Recognizing that the Court itself might block such reforms, the authors nonetheless suggest that this too could serve the cause of making clear to the public that we should not focus just on Court personnel but also on the Court’s role in deciding what the Constitution means. They write, 

If Americans can once more see and understand the vision of constitutional political economy that is being imposed by undemocratic courts, it will become possible to run campaigns on, and elect leaders who strongly advocate, a rival, egalitarian constitutional political economy that aims to restore a democracy of opportunity. 

Fishkin and Forbath don’t leave it there; they provide a set of proposals to attack oligarchy that involve contesting the “weaponized” First Amendment jurisprudence that has substituted campaign spending for true participation as the focus of constitutional protection. They also address how to anchor racial justice in democracy of opportunity, including policies on mass incarceration, health care, social insurance programs, and voting and anti-discrimination. And they explain how the democracy of opportunity tradition can and should animate debates over antitrust, labor policy, banking regulation, taxation, and corporate reform. 

Finally, the authors propose a robust platform of structural reforms of our political system, including constitutional amendments to abolish the Electoral College and reform the Senate, just as our progressive forebears did in establishing an income tax, direct election of senators, and women’s suffrage. Added to the list: ensuring true citizenship for Washington, D.C.

I have only a couple of quibbles with this fine book. In describing the Republican Free Labor movement, the authors could have stated more strongly that land in the West was not “free,” but in fact belonged to Indigenous peoples. And the book might have been helped by limiting numerous reiterations of their central thesis. 

But the arguments are persuasive, and the narrative compelling. The authors wisely chose to avoid the perils of legalese—manifold footnotes, dense writing, and extensive case analysis. The Anti-Oligarchy Constitution is a sweeping and often gripping history of constitutional and political argument and engagement.