As the Supreme Court’s reputation among liberals has plummeted in recent years, the most common response has been ranting. Liberal ranting is defined by its more or less open desire to get the Court back for liberals, without diminishing its potency. For that reason, liberal ranting ignores or opposes proposals to disempower the Court — at most endorsing important but minor sorts of reform such as term limits for the justices, or ethics rules to limit their improprieties, or procedural fixes to how they do business (like controlling the “shadow docket”).
I get it. After all, ranting is an understandable response to being ghosted — especially by an institution for which many have carried a torch for so long. It’s difficult to relinquish the dream of requited love — a future in which we can return to the fantasy that the Court dispenses just outcomes from on high.
Such longing remains the default in the liberal mainstream, which is why liberal ranting is politically consequential. It is the essence of the columns, op-eds, and podcasts that reflect and shape dominant opinion. Ranting is identifiable by how it goes negative on the institution liberals hallowed so routinely, even though the Court has been obviously trending right for fifty years, and was undemocratic even before then.
You know you are listening to a liberal ranter when:
• You hear constant suggestions that the law is supposed to be liberal, and that conservatives on the Court are betraying it — with no acknowledgment that, especially in politically significant cases, the law is whatever judges make it, which is why conservatives set out so long ago to control the bench.
• You hear nostalgia for a progressive Court, as if it is suffering a new deviation — without registering that it has conducted itself dishonorably over the whole sweep of its history, or that the quest for racial justice (always superficial in judicialized form) was long ago abandoned in an age of public school resegregation, or that the advent of crucial protections in criminal procedure coexisted tolerantly with the rise of mass incarceration, or that even the Court’s breakthroughs on rights like abortion and same-sex marriage were part of a larger package of what political theorist Nancy Fraser calls “progressive neoliberalism,” with corporations the most regular winners.
• You hear demonology of how reactionary judges treat the law, and hagiography for the judges who are outvoted when it counts, with lots of obsessive rage for Samuel Alito and Clarence Thomas, and hushed tones reserved for “KBJ” (Ketanji Brown Jackson, the new “RBG” in the making) or, before her, Sonia Sotomayor.
It is a good thing that liberals have finally moved to ranting, after living for generations in denial that their relationship with the Court was in deep trouble. At the same time, there is an alternative that the move to liberal ranting postpones. That alternative is getting over the Court entirely.
To do so would be to pursue an emancipatory political agenda anywhere but courts, where it has routinely gone to die. And, for that very reason, that agenda would have to embrace the risks of democracy — even amidst flawed and undemocratic political institutions — as ones that are worth courting, because of the opportunities that only a less cagey, indirect, and lawyerly American politics can allow.
Samuel Moyn teaches law and history at Yale, and is the author of Liberalism Against Itself: Cold War Intellectuals and the Making of Our Times.