Revisiting this from Samuel Moyn back in 2018, quite prescient:
“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.
The mythology of constitutional law dies hard.
[...]
The United States, Roberto Unger once wrote, is distinguished by “the single-minded focus upon the higher judges and their selection as the most important part of democratic politics.” This syndrome is reflected in the left as well as the right, and their choice over the decades “to obtain from judges, under the cover of improving interpretation, the advances popular politics fail to deliver.” Yet, in democracies, it is the people who are supposed to write their own laws. The limits of this longstanding judicial strategy were clear long before the left failed to block Kavanaugh, which means the only progressive move now is to reclaim democracy.
Consider the alternatives. In the face of a solid conservative majority for years to come, there is no doubt that many (both inside and outside the court) will look hopefully to Chief Justice John Roberts as the new swing vote and treat him, as they did Anthony Kennedy, as the new “centrist” to lure. But Roberts will defect far less regularly than Kennedy. For the more radical, it will seem tempting to complain—as Roosevelt did—of the betrayal of the Constitution. Yet the last constitutional revolution in the name of democracy, at the height of the New Deal, ended up setting the stage for fifty years of illicit judicial empowerment, in part because it merely pushed judges into promising to exercise restraint.
In the face of an enemy Supreme Court, the only option is for progressives to begin work on a long-term plan to recast the role of fundamental law in our society for the sake of majority rule—disempowering the courts and angling, when they can, to redo our undemocratic constitution itself. This will require taking a few pages from the conservative playbook of the last generation. It is conservatives who stole the originally progressive talking point that we are experiencing “government by judiciary.” It is conservatives who convinced wide swathes of the American people that it is the left, not the right, that too routinely uses constitutional law to enact its policy preferences, no matter what the text says. The truth is the reverse, and progressives need to take back the charge they lost. To do so, they need to abandon their routine temptation to collude with the higher judiciary opportunistically. Progressives must embrace democracy and its risks if they want to avoid the stigma of judicial activism that still haunts them from the past.”
