These Progressives Seek to ‘Disempower’ the Courts

Writing recently in The Guardian, left-wing law professors Ryan Doerfler and Samuel Moyn argue that progressives should stop trying to save the judiciary from being overrun by conservatives and instead make “‘disempowering’ federal courts” a top progressive priority. “Far from pulling [the judiciary] back from the edge,” they write, “our goal has to be to push it off.”

In place of an independent judiciary that’s empowered to overrule the unconstitutional actions of elected officials, Doerfler and Moyn argue in favor of a system in which elected officials—and the popular majorities they ostensibly represent—are free to impose their agendas without judicial interference. If progressives want their political project to succeed, Doerfler and Moyn claim, then progressives must “reassign power away from the judiciary and to the political branches.”

I wonder if Doerfler and Moyn are familiar with the expression “be careful what you wish for.” Because if they actually got their wish regarding the courts, it would likely backfire on progressives.

For the sake of argument, let’s assume that the federal courts are magically stripped of their powers at this very moment. Would that leave progressives in a stronger position relative to President Donald Trump? I would think not.

On this point, the liberal law professor Steve Vladeck, who has offered his own criticisms of the Doerfler-Moyn approach, said it well. Here’s how Vladeck put it:

Doerfler and Moyn are quite clear that their goal is to empower the people at the expense of the judiciary, period. But as attractive as that viewpoint might be in the abstract, it seems to me that the last 11 months have driven home, in technicolor, the importance of a judiciary with a modicum of independence—which, among other things, can stand up to tyrannies of the majority.

There is also plenty of older evidence available that argues against the wisdom of disempowering the judiciary. After all, there have been various points in American history during which the courts have basically followed the Doerfler-Moyn approach and simply deferred to the supposed will of the majority. And in those cases, what we find is the U.S. Supreme Court acting at its historic worst.

Two prominent examples spring to mind. In Korematsu v. United States (1944), the Supreme Court upheld President Franklin Roosevelt’s notorious wartime internment of Japanese-Americans on the grounds that the courts had no business second-guessing any such decision made by the executive branch.

Similarly, in Buck v. Bell (1927), the Supreme Court upheld a compulsory sterilization law that was being enforced against a young woman who had been raped by the nephew of her foster mother and then committed to a state asylum by her foster parents. As far as the author of that awful decision, Justice Oliver Wendell Holmes Jr., was concerned, the mere fact that the eugenicist measure was enacted by democratically accountable lawmakers was sufficient to earn it the judicial stamp of approval.

I was under the impression that progressives disapproved of these two cases. Yet the outcome in each case would presumably be acceptable under the Doerfler-Moyn approach because the Court voluntarily stepped out of the way of “the political branches” and deferred to the supposed will of the majority.

Perhaps unfettered majority rule is not the political cure-all that some progressives would like it to be.