Responding to the Supreme Court

What are strategies of hope?

Environmental activists rally in front of the U.S. Supreme Court (Photo by Drew Angerer/Getty Images)

Ok. It’s bad. We all know that: the climate crisis, war, the threat to American democracy, our politics more generally, this damned persistent pandemic.

What is particularly disconcerting is the sense that the forces of repression, illiberalism, inequality, and injustice are locked into a system of power and governance that seems to make overturning these wrongs increasingly difficult. 

At the heart of that concern lies the United States Supreme Court. This nation is still feeling the aftershocks of a term that, though it ended a month ago, continues reverberating across America. And it will continue to do so for the foreseeable future, perhaps for years or even decades. 

Part of that is the result of the impact of the decisions themselves — on guns, the environment, religion, and abortion. Then there is the expectation that the court is not done. Quite the contrary. A sizable hard-right majority is determined to remake American society in a manner that, according to the most reliable poll information, is very unpopular with the electorate at large. 

It is vital that we keep track of the results of these decisions. To allow any of this to be normalized is dangerous for the country.

But what are those who oppose such actions to do? Despair is a natural response, but one that is hardly a rallying cry for resistance, let alone progress. 

In searching for another approach, we came across a thought-provoking string of tweets written in late June in the wake of the Supreme Court’s assault on American rights. It is courtesy of Niko Bowie, whom Harvard Law School dubbed “a scholar of constitutional law, local government law, and legal history” when promoting him to a full professor last month. 

Bowie’s academic pedigree is impressive: Yale undergraduate, Harvard Law School, a Ph.D. in history from Harvard, as well. He is the son of the late legal scholar Lani Guinier. 

However, one of the striking things about Bowie’s effort to inspire those who oppose radical-right judges and justices is that he starts with the limitations of legal elitism. He points the way for a more popular approach, recognizing that the “histories of working women, people of color & abolitionists” contain a long list of improbable victories in America’s march toward greater liberty, equality, and justice.

Niko Bowie @nikobowie

This past week has seen a repudiation of the court-based theory of change that has defined legal liberalism for several decades in the US: a theory that elite lawyers will always be able to use elite reasoning to persuade elite judges not to let things get out of hand.

Niko Bowie @nikobowie

Our government is dominated by graduates of law schools—where they learn how liberal victories since 1954 have been won not by organizing, movement building, or legislating, but by arguing so persuasively that no judge can resist bending the arc of history toward justice.

Niko Bowie @nikobowie

This week reveals one obvious downside of legal liberalism: judges can ignore it. It’s terrific when the people in charge agree with you that everyone should have contraception, healthcare, or a livable environment. But what are you supposed to do when they don’t?

Niko Bowie @nikobowie

More importantly, legal liberalism has also displaced the US left’s infrastructure & vocabulary of popular power. For decades, liberals have confidently responded to injustice with “see you in court.” But the same voices are famished for alternatives when courts are the problem.

Niko Bowie @nikobowie

Rather than look for leadership from dissents or Capitol poetry, we need to learn from people who have spent these same decades building power in *spite* of a hostile legal system. The recent victories of the labor movement, modest as they are, should be studied and replicated.

Niko Bowie @nikobowie

To reverse this week’s court decisions we need national laws. To enact national laws we need political power. To build political power we need to collectively commit not just to the biannual ritual of voting, but also to the day-to-day grit of organizing the people around us.

Niko Bowie @nikobowie

In contrast with legal liberalism, organizing is a theory of change that doesn’t trust people atop hierarchies to share our values. Rather, we must build our relationships with one another into the disruptive leverage necessary to compel skeptics to follow our lead.

Niko Bowie @nikobowie

The labor movement is currently perfecting the art of organizing, whether structure-based or momentum-driven. Its tactics aren’t new but modeled after histories of working women, people of color & abolitionists who built political power with strikes & boycotts, not just lawsuits.

Niko Bowie @nikobowie

Libraries document specific strategies ordinary people have used to change legal structures worse than today’s: books like @rsgexp’s No Shortcuts, Marshall Ganz’s Why David Sometimes Wins, Frances Fox Piven’s Challenging Authority, and Barbara Ransby’s biography of Ella Baker.

Niko Bowie @nikobowie

This is the “history and tradition” we should cultivate. The major question for the left is not how to persuade Justice Kavanaugh or Senator Manchin to listen, but how to persuade our neighbors and coworkers to commit to collective action.

Although Professor Bowie writes of “liberalism” and the political “left,” his argument has potential for appealing to a wide swath — a majority — of Americans of varying political persuasions: Democrats, yes, but also Independents, moderates, and even many Republicans.

A commitment to “collective action.” Rallying around bottom-up activism. A recognition that there have been “specific strategies ordinary people have used to change legal structures worse than today’s.” This is the language of action and hope. This taps into a deep vein of popular movements that have propelled our growth as a nation from the words of our founding documents to a society more aligned with those lofty ideals. 

Ultimately, in a democracy, the energy for change must come from the people — a rising chorus of voices clamoring to be heard and recognizing their power. As Professor Bowie points out, time and time again in the course of American history, those who used their perches in the marbled halls of Washington to try to resist the will of the people had no choice but to listen — or get out of the way.