We must reject the legal liberalism that attempts to cordon off constitutional questions from democratic politics.

By Joseph Fishkin and William E. Forbath, Boston Review

Two years of a devastating pandemic have exposed deep cracks in the U.S. political and economic order. After decades of economic policies that hollowed out the middle class, shocking numbers of Americans lacked the economic means to withstand COVID-19’s disruptive force. But the pandemic also demonstrated that those decades of economic policy are not set in stone. For a brief moment, before collapsing back into familiar patterns of polarization and obstruction, the federal government stepped in with the money to rescue vast numbers of Americans from economic ruin.

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The Democrats are, for now, about two Senate votes shy of enacting a series of major reforms, from addressing climate change to protecting voting rights and making real progress in the fight to rein in the outsized political and economic power of the rich. But even assuming that the Democrats manage to enact such measures—overcoming our system’s many antidemocratic veto points, such as the Senate itself—the toughest challenge is still to come. The looming risk is that all such reforms may be unraveled by our archconservative Supreme Court. The Court has made the Constitution a weapon for selectively striking down legislation the justices disfavor. They are highly likely to wield it against laws that aim to repair economic or political inequality.

The Court can do this with near-total impunity today because many Americans accept the idea that the Supreme Court is the only institution with any role in saying what the Constitution means. Congress and other elected leaders, at best, can fill in the few blanks that the courts have left open. Rather than contesting the Court’s power to make highly questionable judgments about the meaning of the Constitution, most liberals today defend the Court’s authority. Their top complaint about the current Court is that it doesn’t have sufficient respect for its own precedents, which today’s majority is fast overturning as it lurches further right.

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