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May 09, 2014 11:56 AM Asymmetrical Warfare Over the Courts

By Ed Kilgore

Deep in a TNR article by Simon Lazarus and Tom Donnelly on the relative likelihood of an Obama Supreme Court appointment before he leaves office is an important insight about the investment of progressives and conservatives in the composition of the judiciary:

To be sure, Democratic culture warriors care deeply about the same issues that animate their social conservative adversaries, but their sense of urgency about the courts has only spottily trickled down to the grassroots.
In contrast, Republicans savor high-decibel political fights over the courts. In the short term, they see them as a way of firing up their base and burnishing their brand as defenders of the Constitution and the rule of law. And, within the Republican coalition, social conservatives are not alone in prioritizing control of the judiciary for achieving their long-term agendas. Business conservatives also understand how important sympathetic judges have been to their success in neutralizing statutory protections for consumers, workers, retirees, and investors. Finally, libertarians, an increasingly important part of the Republican coalition, view the courts as central to achieving their roll-back-the-New-Deal-and-Great-Society agenda—one that may inspire rhetorical flourishes and symbolic votes in the House, but, as a practical matter, is a virtual dead letter in the elected branches of government.
In sum, Republicans, at all levels, get that the courts matter a lot, and Democrats mostly do not. This asymmetry yields a chronic, structural disadvantage that limits the options available for Democratic and progressive leaders, when battles flare in the ongoing war over the courts.

Lazarus and Donnelly tout isolated efforts by Pat Leahy and Elizabeth Warren to educate rank-and-file Democrats about the practical economic consequences of a conservative takeover of the federal courts. But they are acutely aware that for major segments of the conservative movement—and again, it’s not just the social conservatives we’re talking about, but business interests and particularly libertarians—winning in the courts is now the preferred method for imposing their policy views on the country, and doing so permanently via “constitutional” limitations on government’s efforts to regulate private property.

In particular, attention should be drawn to libertarians’ truly radical constitutional vision for canceling congressional authority to enact, and limiting the President’s discretion to implement, federal regulatory and safety-net guarantees—of which the current round of challenges to the Affordable Care Act are but a leading edge. Libertarian legal scholars have long nurtured revisionist constitutional theories that could, for example, cripple Congress’s capacity to use federal aid to incentivize states and localities to assist persons with disabilities, or tighten pollution controls in line with national criteria, or meet Medicaid requirements for providing access to quality health care for low-income citizens or nursing home residents. Once pie-in-the-sky academic musings, these theories were echoed in the opinion of the four conservative justices who dissented from Chief Justice Roberts’s 2012 decision to leave the ACA largely intact.

There’s a reason the ascendant self-identification label for conservative activists is “constitutional conservatism.” It’s not just because they idealize what they imagine to be the Founders’ design, or attribute many of their policy defeats in the twentieth century to “judicial activism.” It’s because they want to remove policy fights from a democratic arena where private property rights (and for many of them, fetal rights and religious rights) are perpetually at the peril of popular majorities corrupted by vote-buying liberal demagogues, and enshrine their vision of America forever through a legal and judicial revolution.

It’s sometimes hard to realize that a conservative movement that still rants reflexively about “judicial activism” and opportunistically sounds “populist” where it serves their interests has actually reversed roles and seeks to emulate and exceed its enemies’ alleged judicial power. But Lazarus and Donnelly are right: you can see this counter-revolution in the increasingly widespread grassroots conservative subscription to judicial politics as a crucial battleground. And progressives need to catch up, fast.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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