Wednesday, January 11, 2023

Is the Supreme Court Changing Too Much, Too Quickly?

Andrew Coan

Predictably, the Supreme Court’s most recent term attracted a torrent of progressive criticism. Initial reactions focused heavily on abortion rights and the reversal of Roe v. Wade. But over time, a broader and deeper critique has emerged depicting Dobbs v. Jackson Women’s Health Organization as merely one example of a reckless and extreme Court committed to radically reshaping vast swaths of American constitutional law practically overnight. 

This “too much, too quickly” critique seems likely to constitute the prevailing progressive line on the Supreme Court for at least the next few years. But its substance remains murky. Is the critique just another, rather opaque, way of saying that the Court is making a lot of decisions progressives dislike? Is its opaqueness, in fact, a rhetorical strategy for capitalizing on status quo bias, which is more widely shared than progressive political views? Or is the critique making a distinct point about sweeping constitutional change as such?

There are, unquestionably, costs to rapid constitutional change. But progressives hardly think all change should be incremental or slow. The Civil War amendments were a truly revolutionary change—at least for a few years—and would have constituted a much bigger and more radical break if they had been enforced in a sustained way. The New Deal revolution was less profound but still highly consequential and abrupt, affecting vast swaths of social and economic policy in only a few short years.

Brown v. Board of Education also effected a profound and abrupt change, or sought to, as did the Warren Court revolution more generally, especially in the contexts of race, criminal procedure, habeas corpus, freedom of speech, and the Establishment Clause. In an important sense, this revolution continued into the early Burger Court with Roe v. Wade and the sex discrimination cases of the 1970s. If anything, most progressives today think the Court should have gone further and faster in these domains.

More generally, many of the progressives who decry the current Court’s radicalism simultaneously advocate sweeping change to the American constitutional and political order in the opposite direction. “Big structural change” was not the slogan of Elizabeth Warren’s presidential campaign for nothing. And plenty of progressives thought Warren too moderate. Critical voices on race, gender, class, disability, and their intersection proudly advocate revolutionary transformation—if not outright abolition—of the existing social, political, and economic order.

This suggests that many of the Supreme Court’s critics do not oppose sweeping legal change as such. They simply, and quite naturally, oppose the ideological valence of the change currently under way and would therefore prefer to see the Court slow down. The critics might object that there is more to this preference than ideology. They support sweeping jurisprudential change to expand participation in political, social, and economic life, while opposing sweeping change that undermines such participation. But this is a central axis of disagreement between progressives and conservatives—and so another way of saying the same thing.

Ideological disagreement is a perfectly legitimate basis for criticism, but it presupposes the correctness of a progressive worldview, and the Court’s critics are not always clear about that fact. Certainly, their rhetoric is not always clear on this point, and there is reason to wonder about the clarity of their thinking. Openly acknowledging the ideological basis of their critique might sacrifice some of its rhetorical power, but it would place the Court’s critics on sounder logical footing and reduce their vulnerability to charges of hypocrisy and sour grapes.

I suspect some of the Court’s critics will be happy to accept this account, at least tacitly. But others, convinced that the Court’s problems go beyond ideology, will not. The challenge for this group is to explain what is wrong with the Court’s current trajectory apart from their ideological disagreement with the conservative majority.

Consider three possibilities. The first, suggested in a recent essay by Richard Re, is that the rushed and procedurally slapdash character of the Court’s rightward lurch makes its decisions epistemically suspect and needlessly disruptive. Re’s argument resembles, though it is not identical to, earlier arguments for judicial gradualism made by Cass Sunstein and Alexander Bickel. The second possibility, suggested in a recent essay by Joshua Zoffer and David Singh Grewal, is that the current Court’s democratic pedigree is unusually weak by historic standards, depriving its conservative radicalism of any plausible claim to popular legitimacy. Variations on this claim—often emphasizing the stolen seat of Merrick Garland and the rushed, election-eve confirmation of Amy Coney Barrett—are a staple of progressive criticism of the Court. But the claim is rarely worked out thoroughly or carefully distinguished from other, more ideologically focused critiques. A third possibility, closely related to the second, is that the U.S. political system is too unstable to cope with sweeping and ideologically extreme jurisprudential change in this particular historical moment. This could explain why the Court’s critics are troubled by the radicalism of the current Court but not by the sweeping changes of earlier eras.

These non-ideological arguments may or may not provide a defensible basis for criticizing the pace of the Court’s ongoing rightward shift. Ideological disagreement might be the best and only ground available. Or there may be other compelling alternatives beyond the ones I have sketched here. Perhaps a combination of factors is at work, with both ideological and non-ideological dimensions.

Different arguments are likely to point in different directions. Richard Re, for instance, argues that both conservatives and progressives should have supported Chief Justice Roberts’s gradualist approach to narrowing abortion rights in Dobbs. That conclusion hardly follows ineluctably from Re’s epistemic and stability-oriented rationale for gradualism. But gradualism and minimalism are, almost by definition, inconsistent with an ambitious progressive agenda. This is just one example, but it nicely illustrates the importance of specifying what, precisely, is wrong with the changes of the past Supreme Court term and those looming on the horizon. It would behoove the Court's critics to give this matter more careful attention.

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