December 2, 2023

Immigration Marriage

Feel Good With Immigration

The Supreme Court Is Broken. How Do We Fix It?

With the leak of a draft opinion in Dobbs v. Jackson Women’s Health Organization formally overruling Roe v. Wade, progressives’ worst fears about an ever more reactionary Supreme Court appear set to come true.

After decades of chipping away at abortion rights, the court’s conservatives—now a rock-solid majority—seem ready to complete that ideological project openly and even triumphantly.

In itself, such a decision would be catastrophic, especially for those who don’t have the resources or the personal freedom to travel vast distances to receive basic health care. The draft opinion’s unapologetic tone also presages similarly harmful outcomes on issues ranging from contraception to same-sex marriage to immigration to climate change. Indeed, some of these outcomes are already here.

With this parade of horribles about to be realized, progressives are returning with even greater urgency to the question of what to do about the conservative leviathan that is the Supreme Court. As in earlier moments, the temptation is merely to replace that leviathan with a progressive one, packing the court with benevolent justices who will wield the institution’s power for good. Real progress, though, requires the beast to be slayed, stripping the court of its authority and returning our society’s most pressing and important questions to the democratic arena—where progressive causes, backed by popular movements, stand the best chance.

Considering the history of the federal right to abortion helps to reveal the severe limitations of relying on a juricentric approach to securing fundamental rights. Just four years after the court recognized that right in Roe, a nearly identical court declared in Maher v. Roe that the state was under no obligation to make abortion economically feasible. Even at the height of its support for reproductive health care, in other words, the court ensured that the right to abortion would be one in name only for millions of women without the financial means.

The Supreme Court’s refusal to guarantee meaningful, positive rights to US citizens (let alone noncitizens) goes far beyond abortion. Even during the Warren Court era, the historical anomaly to which so many defenders of juristocracy cling, liberal justices failed to extend constitutional protections to America’s economic underclass, thereby abandoning an ideal of substantive equality in favor of formal equality.

In addition to failing to provide positive rights, the Supreme Court has, throughout its history, actively impeded Congress from providing such rights through ordinary legislation. Most famously, the court struck down the Civil Rights Act of 1875 in the Civil Rights Cases, undercutting Congress’s primary effort to guarantee the rights of Black Americans in the aftermath of the Civil War. Much more recently, in a decision hailed by liberal media as “upholding” the Affordable Care Act, the Supreme Court invalidated Congress’s expansion of Medicaid, once again depriving poor people of the affirmative right to health care they are so desperately owed.