Counting on the Supreme Court to uphold key rights was always a mistake

Contrary to a popular misconception, when the court has assigned and defined rights, more often than not it has reinforced the rule of powerful and privileged minorities rather than protecting ordinary (let alone marginalized) citizens. That is the dismal but often-denied truth driven home by Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, which would overturn Roe against the preferences of a majority of Americans. The need for a course correction is clear, even if the final opinion modifies the argument against Roe or the justices find a compromise to uphold the intrusive Mississippi restrictions without overruling their old case.

The fact that the Supreme Court has seldom protected important rights flies in the face of the court’s self-image and contradicts a romanticized view of the institution that arose during the mid-20th century, thanks in part to decisions such as Brown v. Board of Education and Roe. “Fundamental rights may not be submitted to vote; they depend on the outcome of no elections,” Justice Robert Jackson wrote in 1943, in a case forbidding West Virginia from compelling students to pledge allegiance to the flag. It has since been cited as immortal wisdom: The whole point of rights, Jackson said, is “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities … and to establish them as legal principles to be applied by the courts.” Majority rule indulges bigotry if it does not pave the way to tyranny, many of us learned in high school civics class, which is why the Constitution accords rights the highest protection and why so many think the judiciary is the branch that ought to delineate them.

But those civics teachers were wrong. Understanding the judiciary as a safeguard of justice against the majority’s injustice has proved to be folly. In fact, historically speaking, rights have most often been granted through elections, when coalitions in Congress agreed on their importance. Meanwhile, Supreme Court justices have regularly withdrawn rights from deserving majorities and minorities. We are relearning that lesson today: The future of American rights, precisely because they are so precious, is democratic. Indeed, it depends on forcing the Supreme Court to let national majorities rule.

How the Supreme Court dominates our democracy

The historical evidence against the idea that the Supreme Court is a reliable guarantor of rights is strong. The court heard next to no cases about constitutional rights for nearly a century after the nation’s founding. The Bill of Rights, appended to secure the Constitution’s ratification, applied only to a small federal government. After the Civil War shifted some power away from the states to Washington, Congress took the lead on rights, passing a Civil Rights Act in 1866 to protect the equality of newly emancipated African Americans before the law. Lawmakers went on to craft the 14th Amendment, which made clear Congress’s power to define and protect rights through “appropriate legislation.”

But then the Supreme Court drastically restricted the rights Congress had accorded. It minimized the protections of the 14th Amendment, in the Slaughterhouse Cases (1873), and gutted Congress’s civil rights statutes, in the Civil Rights Cases (1883). Astonishingly, for a long time — well into the 20th century — the most prominent rights the Supreme Court protected in the name of the Constitution were those that helped rich business owners at the expense of the majority — by, for example, striking down maximum-hour laws for workers or a federal minimum wage.

No wonder President Franklin D. Roosevelt, in his confrontation with the Supreme Court during the Great Depression, called for taming the institution. “The government of the United States refuses to forget,” he explained, “that the Bill of Rights was put into the Constitution not only to protect minorities against intolerance of majorities, but to protect majorities against the enthronement of minorities.” The Supreme Court attempted a last stand against democracy by invalidating early New Deal statutes such as the National Industrial Recovery Act, but the justices relented after Roosevelt’s massive electoral victory in 1936, allowing his national political coalition to have the laws it wanted. (Roosevelt’s 1937 proposal to “pack” the court by adding new members, though tabled in Congress, also played a role.) For example, in the pivotal case of National Labor Relations Board v. Jones & Loughlin Steel (1937), the court let the Wagner Act survive, with its extension of workers’ rights to bargain collectively for better wages and working conditions.

From the end of the Civil War through the New Deal, Americans understood that the Supreme Court had to be kept in check so that legislated rights could prevail. But having been tamed, the court drifted again from the understanding that rights come from legislation, in the name of protecting civil liberties during World War II — when Jackson wrote — and for the sake of racial justice during the Cold War. For a comparatively brief time, before President Richard Nixon began the right-wing transformation of the court, liberals controlled the institution and came to believe that judges were indispensable to the progress of rights. But then the empire struck back. Conservatives regained control of the Supreme Court and have used it for 50 years to curtail rights — or, as with gun rights, to introduce questionable ones. As before the New Deal, the constitutional rights defended most steadfastly by the court are business-friendly, including “free speech” for corporations.

Liberals have refused to unlearn lessons from the Supreme Court’s role in the second coming of civil rights, in the middle of the 20th century, and the results have been grievous. Congress was uniquely hobbled during that period: The Solid South, a crucial part of the Democrats’ coalition for decades, prevented Congress from being the first mover on civil rights. The Supreme Court, on the other hand, had been stocked by Democrats with liberals for almost 20 years; that allowed the court to strike an early blow in Brown. The justices also made the Bill of Rights applicable to the states, and many protections in the criminal process followed. To justify this new interventionism, new myths were crafted to the effect that judicial protection of rights has always been essential in America, and in any democracy that deserves the name.

But beyond treating an exceptional moment as the basis for an enduring consensus, there was a less pleasant reality. Relying on the courts to achieve racial justice — including in Brown — hardly succeeded in any deep and enduring way, as the record of public school resegregation and police and prison violence in recent decades proves. And liberals were building an antidemocratic superweapon that could be used by their enemies in the future. Indeed, in Shelby County v. Holder (2013), a conservative court struck down important parts of the 1965 Voting Rights Act — an example of the democratically enacted legislation that ultimately did the most to secure rights for African Americans in the civil rights era. As abortion rights advocates are now seeing, while the higher judiciary giveth, it more often taketh away. And in the abortion rights successor case Maher v. Roe (1977) — which said women on Medicaid were not entitled to financial support for abortions — and so many other domains, the court has never afforded constitutional protection to the poor, who most need rights of all kinds.

Worse, the liberal reliance on rights protection through interpretation of the Constitution from on high has allowed conservatives to present themselves as friends of the democratic process, even when their policies, on abortion rights and across the board, have been unpopular.

In his draft abortion decision, Alito makes the case that getting rid of rights that judges make up merely clears the way for people to decide whether to retain them. In this, he echoes the late justice Antonin Scalia, who often made the same argument. But Alito doesn’t mention that he has regularly voided legislation that expresses the popular will. For example, when the people of Illinois decided to require employees of some unionized workplaces to contribute payments to the union (not full dues), Alito wrote for the court in Janus v. ASFCME (2018), invalidating the law.

The court continues to curtail Congress’s power to act to protect rights. The most dramatic instance in the recent past came when Congress tried to undo Scalia’s opinion in Employment Division v. Smith (1990), which degraded religious freedom for minorities. (The court concluded in that case that a generally applicable law barring peyote use could be enforced against Native Americans who used it in religious services.) Writing for the majority in City of Boerne v. Flores (1997), Justice Anthony M. Kennedy decreed that Congress may not second-guess — let alone supplement — the Supreme Court’s judgments about religious liberty or the parameters of constitutional rights in general. In other words, the court gets to override Congress in the name of the Constitution — but the reverse is not true.

Republicans won’t be satisfied with overturning Roe

The most powerful response to any proposal that elected representatives take the lead in defining and protecting American rights is that Congress isn’t sufficiently democratic, either. Majority views can be dangerous sometimes (the civics teachers were right about that). Moreover, Congress — with a Senate that privileges small states and gerrymandered districts across the land — has never reflected democratic principles. The question, however, is whether majorities in a flawed national legislature are the better option to define and defend rights than the Supreme Court. The fact that political majorities aren’t likely to unerringly vote to expand rights does nothing to change the harder fact that judges are even less likely to do so.

In choosing whether Congress or the Supreme Court takes the lead on rights, we are not choosing between majority voting or something else; we are deciding which majority gets to make policy. After all, the Supreme Court reaches its results by majority vote. More important, the justices owe their appointments to two institutions with deeply anti-democratic features: the Senate (which overrepresents residents of small states) and the presidency (ditto). If Congress is not democratic enough, its pathologies are intensified in the Supreme Court.

The stalling of the Women’s Health Protection Act, which would have codified Roe, in the Senate last month shows that it may be too soon for a popular coalition to pass abortion rights legislation. The move to end debate on the measure was defeated 51 to 49. But if the Democrats set aside the filibuster, as almost all of them want to do, the measure is only a vote short of majority approval.

In any case, it is clear that a new approach to American rights is required now, in the face of a conservative Supreme Court that will continue to limit rights (or protect corporate and gun rights) for as long as we can foresee.

Whichever branch of government ultimately endorses and enshrines rights, the political fights over these rights will be hotly contested and never finished. That was certainly true during the Supreme Court’s “heroic” phase in the mid-20th century: The landmark civil rights and personal rights decisions were possible only because political movements created the preconditions for the justices to rule as they did. And justices began to whittle those same rulings down as soon as popular support for them waned.

Once we accept that abortion rights must be protected through political means, rather than judicial fiat, there is no reason not to be ambitious. A federal guarantee should stick neither with Roe’s argumentative faultiness — dubiously grounded in a right to privacy rather than women’s equality — nor its narrow protections. A new federal abortion right could ensure that it is a funded entitlement for the poor women who most need it.

And to the obvious objection that the Supreme Court could junk a law establishing this right or erode it again, Congress could safeguard its efforts by diminishing the court’s power to overturn the law. The statute could specify that the court lacks jurisdiction to hear challenges to it (“jurisdiction-stripping”), or it could establish that a supermajority of justices is required to strike it down. Both approaches would be controversial, and the court could resist them as a challenge to its power. But the court also resisted New Deal efforts to drag American social policy into the modern era. As Roosevelt said, “Whenever legalistic interpretation has clashed with contemporary sense on great questions of broad national policy, ultimately the people and the Congress have had their way.”

Arbitrary and unreviewable power of the sort the Supreme Court now possesses is the worst threat to democracy and rights alike. Abortion rights are at stake in the Dobbs case and its political aftermath but, equally fatefully, so is whether democracies can legislate rights of almost any kind. Only when rights are legislated, progressives need to learn, are they made reliable.