Recently on this blog, Sabeel Rahman and Ganesh Sitaraman detailed the growing interest among public law scholars in questions of power, inequality, and political economy. One feature of the emerging scholarship, they correctly note, is that it directs its attention not primarily to courts, but to legislators and social movements; it focuses not primarily on questions of judicial review but on problems of institutional design and constitutional structure.
There is good reason for the non-juridical focus, as I and others have previously argued. Courts have rarely been leaders of progressive change, especially in the absence of well-organized social movements. On economic issues in particular, courts have tended to be regressive. Against this background and given the Court’s current makeup, relying on litigation as the primary method for opposing economic inequality would be a fool’s errand. Moreover, for public law scholars committed to building a more democratic and egalitarian political economy, there are normative reasons to focus beyond courts. Courts, after all, are not fundamentally democratic or egalitarian institutions. There is an irony in relying on elite, nondemocratic institutions to achieve a more egalitarian distribution of power and resources.
Still, as the Supreme Court winds down its Term, with some cases that directly implicate problems of inequality and political economy yet to be decided (and several others already issued), it is worth remembering the importance of judges—and the imperative of developing, even within courts, an alternative vision to the one that too often prevails today.
After all, confrontation with (and within) courts is inevitable in our legal culture. And judge-made constitutional doctrine, though by no means the primary cause of economic inequality, has played an important role in reinforcing and exacerbating it. Consider, for example, the spending clause analysis in the health care case, which effectively denied to millions of poor Americans the benefits Congress had extended them. Or cases like International Brotherhood of Teamsters, Local 695 v. Vogt, Inc., which allowed statutory prohibitions on union picketing in contravention of First Amendment principles. Or the infamous San Antonio v. Rodriguez, in which the Court rejected a constitutional challenge to unequal education spending.
In short, the claim that progressives ought to focus on political organizing does not tell us anything about what judges ought to do when deciding cases. Nor does the recognition that the Court has historically favored elite interests deprive particular judges of agency. While some justices have made choices to reinforce economic inequality and to constrain the ability of political actors to remedy it, others have resisted, often with strong arguments from precedent, text, and history on their side. Regressive holdings that now seem canonical were once hotly contested and deeply divided. Indeed, the dissenters in such cases as Vogt and Rodriguez invoked equally strong, if not stronger, doctrinal arguments than did the majorities.
Unfortunately, however, in recent decades even some of the Supreme Court’s more liberal members have offered only tepid opposition to economically regressive doctrine, frequently accepting it as part of legal orthodoxy. Liberal constitutional theorists have, to great extent, encouraged this approach by cautioning judges to interpret the Constitution “minimally” so as to avoid contentious value choices. As a result, even dissenting judges have missed opportunities to develop countervailing accounts of constitutional rights. Thus, much constitutional law relating to the distribution of economic and political power and the nonexistence of social welfare rights now seems indisputable, sometimes even quintessentially American.
Nonetheless, arguments for a more egalitarian interpretation of the Constitution can still find significant toeholds in the doctrine (as well as strong historical and textual grounding). To be sure, such arguments are unlikely to prevail in the near term. A doctrine that requires provision of education or other social welfare goods or that offers robust protection for workers’ rights will likely require new social movements and new appointees to the Supreme Court. But new social struggles and new justices can produce new outcomes.
On that point, there are a few reasons to be hopeful. In recent months, teachers in several so-called “red” states have coalesced around support for a right to quality public education and to fundamental union rights. Other citizens have organized in support of health care for the needy and perhaps for all, forcing even conservative legislators to reject repeal of Obamacare. Meanwhile, a few judges and Justices have drawn new attention to how the law fortifies inequality, have taken up constitutional claims against economic inequality, and have fleshed out substantive constitutional arguments in support of a more egalitarian distribution of power and resources. In short, a constitutional vision that diminishes, rather than fortifies, economic inequality may be hard to achieve, but it is not unimaginable. Such a vision is an important component of any republican revival.