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Responding to the Supreme Court
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Responding to the Supreme Court

What are strategies of hope?

Dan Rather
and
Elliot Kirschner
Jul 26, 2022
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Responding to the Supreme Court
steady.substack.com
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.

Twitter avatar for @nikobowie
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.
1:16 PM ∙ Jun 27, 2022
13,901Likes2,953Retweets
Twitter avatar for @nikobowie
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.
1:16 PM ∙ Jun 27, 2022
5,347Likes806Retweets
Twitter avatar for @nikobowie
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?
1:16 PM ∙ Jun 27, 2022
3,825Likes521Retweets
Twitter avatar for @nikobowie
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.
1:16 PM ∙ Jun 27, 2022
3,977Likes679Retweets
Twitter avatar for @nikobowie
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.
1:16 PM ∙ Jun 27, 2022
3,828Likes555Retweets
Twitter avatar for @nikobowie
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.
1:16 PM ∙ Jun 27, 2022
4,328Likes932Retweets
Twitter avatar for @nikobowie
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.
1:16 PM ∙ Jun 27, 2022
3,109Likes519Retweets
Twitter avatar for @nikobowie
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.
1:16 PM ∙ Jun 27, 2022
2,463Likes303Retweets
Twitter avatar for @nikobowie
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.
1:16 PM ∙ Jun 27, 2022
2,127Likes265Retweets
Twitter avatar for @nikobowie
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.
1:16 PM ∙ Jun 27, 2022
3,239Likes564Retweets

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.

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Susan Dorfman
Aug 5, 2022·edited Aug 5, 2022

In some courts, justice reigns. The lies perpetrated by Alex Jones, earned him real punishment affecting his wallet. The lies generated and broadcast by the Republican party must be fought creatively to assure appropriate and meaningful punishments. The lies support an agenda of rule by a minority that attacks our Constitution. It is a self serving agenda designed to preserve advantage for the white, Christian wealthy at the expense of the more diverse citizenry of our nation. The decisions and punishments may come from the courts, but must be supported by the pressure applied from organizing and concentrating the opinions of the people. For example, the Republican party demonstrates success in the long range planning and organizing of anti abortionists' minority beliefs. To withstand the assault, "grass root" organization and financial support of groups already organized to fight the attacks are essential. There is no simple solution.

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Keith
Aug 2, 2022

Community is the answer. Real, not online. But these two must meet, in a productive way, to have effect in today's world. That is one important part of the struggle. Indeed, today's electronic media is both a blessing and a curse.

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