In Fishkin & Forbath’s dazzling book, courts are thorns in the side of the democracy-of-opportunity tradition. As they tell it, claims about what the Constitution demands for our economic life were largely advanced in Congress in the periods leading up to and through the New Deal. But this tradition of making constitutional political economy arguments soon went into repose as progressives ceded constitutional authority to courts. Progressives assumed a defensive crouch, asking courts to uphold the constitutionality of regulatory laws on narrow grounds, forsaking more affirmative constitutional arguments. And they elevated courts as the principal expositors of constitutional meaning in battles over civil rights and liberties.
The story of courts and constitutional political economy is in some ways more complicated. As Fishkin & Forbath recognize, courts not only pass upon the constitutionality of statutes, they also interpret and apply them. The book focuses less on these processes of interpretation, in large part because constitutional political economy arguments to some extent faded in courts in the period since the New Deal. But during this time, progressives still did important constitutional work in courts and agencies in interpreting, enforcing, and entrenching regulatory laws. Indeed, in contexts as diverse as housing and employment discrimination, disability, securities, and antitrust law, litigants and courts have played a substantial—and at times, leading—role in interpreting regulatory statutes and settling them into the constitutional fabric as “super-statutes” or “constitutional constructions.”
But even this thinner form of constitutional development in courts came under attack. Fishkin & Forbath recount how the Supreme Court interpreted the Federal Arbitration Act in a neo-Lochnerian manner, employing freedom-of-contract rationales to facilitate efforts (largely by corporations) to privatize a broad swath of regulatory enforcement litigation. Other procedural reforms over the past half-century have had similarly restrictive effects. As Stephen Burbank and Sean Farhang show, the Supreme Court has effected a counterrevolution against regulatory enforcement litigation. The Court’s decisions involving pleading standards, summary judgment, and class actions, among others, have constrained regulatory enforcement. Procedure increasingly clogs up the pathways that members of the public might travel to interpret and entrench political economy commitments.
Procedure and political economy are therefore deeply linked today. But the book offers an opportunity to further deepen their connection. Civil procedure scholars can benefit from engagement with the book’s themes, and the scholarly account of constitutional political economy can benefit from more focus on procedure.
Civil procedure scholars have begun to document procedure’s relationship to issues of political economy—focusing on procedure’s connection to economic inequality, neoliberalism, poverty, subordination, and more. The book might illuminate other paths, provoking us to understand the constitutional dimensions of procedure’s decline by embedding it in the book’s core themes about oligarchy, the middle class, and inclusion. We might, for example, understand arbitration’s privatization and the mounting procedural barriers in courts for poor and middle-class litigants as both consequences and instruments of rising oligarchic conditions. Similarly, we might focus on how procedural reforms that weaken regulatory enforcement and limit recourse to the courts create the conditions for economic, racial, and gender-based subordination in the marketplace that offends republican values.
Conversely, attention to civil procedure can enrich the way we think about questions of constitutional political economy. The book ends with a call for reviving the democracy-of-opportunity tradition on the left, and its proposals mostly focus on enacting and amending substantive policies. But, as the story of civil procedure over the past half-century has shown, a great deal—perhaps most—of the work of building a democracy-of-opportunity lies in devising procedures that enable members of the public to interpret, elaborate, and entrench constitutional-regulatory commitments over time.
In a way, this implication flows from the book itself. It provides a cautionary tale of what happens when affirmative constitutional arguments bloom in legislatures and wither in enforcement processes. To rewrite this tale, we should think about procedure as the infrastructure of democracy—a latticework over the landscape of regulatory law that facilitates or impedes the public as it seeks to elaborate and enforce regulatory norms and implement a vision of constitutional political economy.
In the administrative law context, scholars have begun the work of developing progressive, participatory, and inclusive visions of administrative law and procedure that can facilitate a rejuvenated democracy-of-opportunity tradition. Civil procedure scholars (myself included) have paid more attention to unearthing the pathologies and shifts that define this dim era of procedure. But we ought to turn towards bolder acts of imagination: developing a progressive vision of civil procedure and courts for a revitalized regulatory era. That vision would forsake judicial supremacy, denying courts the role of sole expositors of constitutional meaning and elevating other institutions and agents in the constitutional conversation. But it would also not remove courts entirely from the fold, and instead reimagine litigants, lawyers, and judges as co-agents of constitutional-regulatory interpretation and procedure as the framework for it.
Pursuing such a vision may be impossible, unworkable, or unwise. Today, there are good reasons to be skeptical of courts and civil procedure. Indeed, many legal scholars seemingly have a case of endowment disaffects—an aversion to the institution we study because we see its problems so closely.
But any future of the democracy-of-opportunity tradition builds on broken foundations. Congress has, among other things, become largely responsive to the wealthy and powerful. Agencies are engaging in acts of sabotage and structural deregulation and are hardly sufficiently responsive to the public. Creating a democracy-of-opportunity demands radical reconstruction. And there are reasons to at least try to summon a progressive future for courts and civil procedure in such a reconstruction.
First, there is tradition: for better or worse, Congress has centered litigants, courts, and civil procedure in regulatory interpretation. In the U.S., we have, as Cynthia Estlund reminds us, a slew of “grand framework statutes, enacted decades ago, that still govern vast swaths of our economic life.” Many of these statutes rely on judicial enforcement—with thousands of causes of action between the federal and state levels arising under laws regulating the workplace, housing, healthcare, the environment, securities, and much more. These rights of action are unlikely to disappear with the wave of a hand, and citizens are accustomed to turning to courts to make real regulatory commands. The challenge, then, is, as Jedidiah Purdy puts it, “not to allow such foundational statutes to be misused to concentrate and reinforce private economic power” and instead, as Fishkin & Forbath write elsewhere, to construe statutes “in light of the constitutionally necessary work” they perform.
Future constitutional political economy claims are therefore likely to run through courts and be affected by their procedures. And there are institutional reasons that suggest the virtues of including courts alongside agencies in these interpretive processes. Agencies can handle massive numbers of adjudications and engage in systematic, prospective rule-making. In these ways and others, they can contribute richly to constitutional-regulatory interpretation. Courts typically respond to claims individually, but this feature may potentially give constitutional interpretations overlooked within agencies more airing. Similarly, courts are generally governed by trans-substantive rules of procedure that more consistently give citizen-enforcers case initiation, control, discovery, and appellate rights than agency adjudications do. These procedures can assist members of the public in bringing new constitutional-regulatory claims, gathering and sharing information, and sparking public dialogue over constitutional-regulatory commitments.
Finally, there is a more pragmatic reason for keeping courts in the fold. Providing multiple institutions for citizens to engage with in interpreting constitutional-regulatory commitments may provide insurance against the temporary or prolonged rotting of one institution. At various points in our nation’s history, courts and agencies have been more or less responsive to public claims-making. If these patterns persist, there may be value in having overlapping enforcement institutions. Institutional pluralism may be a bulwark against rot.
Of course, we should not limit our imagination to courts and agencies as interpreters of a revitalized democracy-of-opportunity tradition. But one lesson Fishkin & Forbath’s book illustrates so powerfully is that transformations in constitutional political economy often arise from citizens refurbishing both fundamental values and the institutions that carry them into effect. The future of courts and civil procedure in constructing a democracy-of-opportunity is unclear, but counting them in or out demands vision that stretches beyond the present malaise.