Progressive Politics and the Courts: Lessons from the United States
Judicial Power and the Left: Notes on a Skeptical Tradition (2017), Richard Ekins & Graham Gee (Eds.)
8 Pages Posted: 11 Nov 2019
Date Written: 2017
In recent years, contested political issues in the US have been subject to strategic judicial challenges that attempt to reopen political debates on a more favorable battleground. For example, twice in the four years after Congress and President Obama enacted health reform, legal challenges subjected this progressive achievement to a final veto point: the consent of an ideologically fractured Supreme Court. Conservatives attempted to achieve through the courts — citing novel legal doctrines — a policy goal of enormous consequence, which they could not achieve through the legislature. Party actors used the judiciary as an institutional veto for the political process; a final means to block a policy change that American progressives had for generations fought to secure. Conservatives made similar legal challenges to nearly all of President Obama’s major initiatives, in policy areas including oversight of the financial system, environmental regulation, and immigration.
Further, recent Supreme Court decisions — particularly the decision securing nationwide marriage equality — may give the appearance that the US left has done well before the courts on ‘social’ issues, but that success may be overstated. And the perception may prove all the more illusory if we are entering an era in which economic policy issues dominate, or if the courts allow economic rights and powers, decided more in line with conservative values, to trump social ones.
The stakes are even higher than particular, monumental policy decisions. Over time, delegating policymaking power to the courts could cause the mechanisms of healthy public participation in democratic decision-making to atrophy. The recent US experience is that the courts are erratic defenders of pillars of democratic participation, such as voting rights and measures against political corruption. Judicial power may also enervate citizens’ knowledge of and participation in far-reaching policy decisions. Judicial policymaking also distorts electoral politics because it increases the stakes of judicial appointments. These possibilities should concern anyone who values strong citizen participation in public life and a healthy democracy. The left should be especially troubled: when democratic engagement falters and policymaking constricts to litigation, progressive aims may be most hurt.
The UK left may be attracted to constitutional arrangements that give the judiciary greater policymaking power through frustrations with political processes and court decisions on policy issues that advance progressive aims. But a view from the US — a mature system, in which judges already have much policymaking power — should temper that attraction. Recent US developments suggest that judicial policymaking does not reliably secure progressive goals, and, in the long run, could enfeeble democratic participation and debate in ways detrimental to democracy as a whole and progressive aims in particular.
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