In a recent op-ed for The Guardian, law professors Ryan Doerfler and Samuel Moyn have ignited a debate within progressive circles by arguing that the focus should shift from trying to preserve the judiciary from conservative influence to actively disempowering federal courts. They assert that progressives should aim to “push it off” the edge rather than merely pulling it back, suggesting that a judiciary with reduced power would allow elected officials to impose their agendas without judicial interference.
Doerfler and Moyn posit that the independence of the judiciary is an obstacle to achieving progressive goals. They advocate for a system where the political branches of government hold the reins of power, ostensibly representing the will of the majority. Their provocative stance raises the question of whether stripping the judiciary of its powers would indeed strengthen the progressive movement, particularly in the context of contemporary political dynamics.
Liberal law professor Steve Vladeck has spoken out against this approach, underscoring the importance of an independent judiciary. He remarked that while Doerfler and Moyn’s goal is clear—empowering the people at the judiciary’s expense—history illustrates the critical role courts play in checking potential overreach by the majority. “The last 11 months,” Vladeck stated, “have driven home, in technicolor, the importance of a judiciary with a modicum of independence—which, among other things, can stand up to tyrannies of the majority.”
The historical context of judicial independence further complicates the Doerfler-Moyn thesis. There have been notable instances in U.S. history where the courts have chosen to defer to the political branches, often with dire consequences. Two cases stand out: Korematsu v. United States (1944) and Buck v. Bell (1927). In Korematsu, the Supreme Court upheld the internment of Japanese-Americans during World War II, arguing that the judiciary should not second-guess executive decisions. Similarly, in Buck v. Bell, the Court sanctioned a Virginia law mandating the sterilization of individuals deemed “unfit,” with Justice Oliver Wendell Holmes Jr. endorsing the measure simply because it had been enacted by democratically accountable lawmakers.
Both of these cases highlight the potential pitfalls of unchecked majority rule, which appears to be at odds with progressive values. While Doerfler and Moyn seem to suggest that disempowering the judiciary could lead to more favorable outcomes for progressive causes, the reality may be more complex. In circumstances where the courts have receded from their role as a check on legislative power, the results have not always aligned with the ideals progressives champion.
The implications of this debate extend beyond academia, affecting the political landscape as progressives navigate their strategies in a polarized environment. It remains to be seen whether a movement toward judicial disempowerment would yield the desired political transformations or inadvertently undermine the very principles of justice and equality that many progressives advocate.
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