"Liberals should give up on the judiciary"

The title of this post is a TL;DR summary of an article in Harper's Magazine entitled "Courting Disaster."  Herewith a few of the most salient arguments:

To purify the court, the good court’s disciples tell themselves, they need to expose the fraud of originalism, to devise rival philosophies, to outmuscle and undermine the cabalists. The high court, made good again, will then resume the righteous work of its fabled forebears.

This story gets told because it offers a straightforward lesson for liberals at a moment when little else seems simple: if Democrats could only reclaim the judiciary, it would rescue them from a political sphere that increasingly seems to have gone off the rails. There’s comfort in talk of restoration, of a halcyon era recovered. But this is the wrong lesson. The good court of the postwar period was an aberration. The court has rarely been friendly to progressive ideals, and what it giveth, it can taketh away...

Law is a conservative profession by nature. It attracts rule followers. Its practitioners tend to come from the moneyed classes, and then cater to their interests. The courts, too, tilt in this direction. They’re principally backward-looking, with the authority to maintain the status quo or restore the status quo ante. Federal courts are generally given the prerogative to curtail government programs but not to create or expand them. Likewise, judges often block regulatory action but rarely order it. This asymmetry lends itself to libertarian outcomes more naturally than progressive ones.

Given this structural and sociological bias, it’s not surprising that for most of American history the courts have been aligned with political conservatives and capital—the elites, who had the most to lose from popular democratic rule...

... they misdiagnose the deeper problem the court poses for the left, or any group whose policy agenda—unlike the present-day GOP’s—depends on enacting federal legislation. With judicial supremacy uncontested, the Supreme Court has installed itself at the apex of national politics. The justices hold an absolute veto on almost any government action. They endorse and demote individual rights at will, picking political winners and losers along the way. After all, American constitutional rights are “trumps,” as Dworkin put it, that defeat most, if not all, competing claims of interest. Who controls the court matters, but more important still is what the court controls. And for decades now, it has controlled far too much.

    

Objections to judicial supremacy from both the left and the right are most often articulated in terms of its undemocratic character, what the constitutional theorist Alexander Bickel called the “counter-majoritarian difficulty.” The basic critique is compelling: core political rights and even the most popular laws exist at the mercy of five unelected justices insulated from accountability by life tenure and a salary that can’t be docked...

Some might raise the specter of the political philosopher Judith Shklar’s “liberalism of fear”: judicial supremacy as a check against the bad things an unrestrained state can do. But the courts won’t stop an able autocrat. In countries that have recently slid toward authoritarianism, judiciaries either have learned to love the tyrant or have been crushed by him. When constitutionalism thwarts effective governance, moreover, it supplies the ideal conditions for populist authoritarians to rise. The greater risk today isn’t that Congress will occasionally pass bills that many of us won’t like. It’s that five well-to-do lawyers will prevent Congress from responding to the country’s needs.

Others may wonder who, if not the Supreme Court, will articulate and secure minoritarian rights against the tyranny of the majority. The courts, in truth, recognize relatively few rights; most of those we enjoy derive not from the Constitution but from federal statute. To name just a few: voting rights; labor rights; disability rights; rights against discrimination in employment, housing, and public accommodations. As the legal scholar Jamal Greene argues in How Rights Went Wrong, Congress has the institutional capacity to weigh and reconcile various values and interests, not only to pick which interests get to trump all others. When it comes to statutory rights, the court’s primary role since the Eighties has been to undermine them by curtailing, and at times usurping, congressional power...

“Law reflects but in no sense determines the moral worth of a society,” the scholar Grant Gilmore argues at the conclusion of The Ages of American Law, his classic survey of American legal history. The worse a society’s politics, he claims, the more it will lean on the law to resolve deep-seated disagreements, which tends to deepen them further still. “In heaven there will be no law, and the lion shall lie down with the lamb,” Gilmore writes. “In hell there will be nothing but law, and due process will be meticulously observed.”

Much more in the source article at Harper's Magazine, which should be read before starting to argue the points made.