Liberals need legislative change, not judicial decrees, to stop the Trump menace.

The Supreme Court in 2018. Citation: NYMag

Yesterday’s Supreme Court ruling on Trump’s travel ban dealt a crushing blow to liberals across the country. It vindicated one of the president’s signature policies, one that he campaigned and was elected president on. The ruling also subverted an increasingly popular technique of legal resistance against the president: using his oafish tweets against him in a court of law. Chief Justice John Roberts’ opinion argued that these tweets did not matter. What mattered was that the text of the ban itself offered a “facially legitimate and bona fide” rationale for the executive action, thereby making it constitutional in the eyes of the judiciary. To the surprise of no one, Trump responded to the victory in characteristic fashion:

Condemnation of the decision was swift and harsh. In her dissenting opinion, Justice Sonia Sotomayor accused the majority of being fooled by the Trump administration’s legalese, arguing that no matter the text of specific bans, they were still clearly “motivated by animosity toward a disfavored group” Mark Joseph Stern of Slate characterized the decision as “a deeply partisan opinion in which five Republican appointees willfully ignored the flagrant bigotry of a Republican president.” Christian Farias of New York went further. In an article titled “It’s Donald Trump’s Supreme Court Now,” Farias wrote, “Under the court’s Trump-specific analysis, just about any official indignity that unduly burdens the lives of minorities or marginalized groups within our borders may well be tolerated,” adding, “With the court taking this view, not even the Constitution can be expected to stand as a check on Trump.”

This decision should serve as a wake-up call for the country’s liberals. For too long, they have had a savior complex about the Court. Liberals have noticed the nation’s political institutions starting to break down in the past two decades, with Congress slowing to a halt and the backwards Electoral College stealing several presidential elections. Legislation has seemed impossible. States and cities do not have the money or the political will to achieve liberal goals. Democratic politicians at every major turning point (the fight against welfare reform, the Florida recount in 2000, the 2010 redistricting midterms, etc.) seemed to let their constituents down without fail.

Eventually, the left began to place much of its hope in the workings of the Supreme Court. The Court could work fast, ending decades of oppressive behavior with an almighty decision. Supreme Court decisions could create systems of enforcement like school busing to compel individuals to act virtuously. It would also protect vulnerable classes in ways that popularly elected legislatures never could. Gay marriage became the clearest example of this trend; while states were busy passing constitutional bans on the practice, the Supreme Court sanctioned it throughout the country with a single decision.

But those exceptions were never how the Court worked. For much of its history, the Supreme Court has been a bastion of conservatism. According to legal scholar Fred Rodell, nothing magical happens when Supreme Court justices don their robes. They bring the “same mind, the same personality, the same political perspectives and prejudices — plus the same ability or inability to govern wisely.” And in a large number of cases, those political considerations were conservative. This underlying trend is why so many leaders of the Court have been known as stalwarts of conservatism. John Marshall protected corporations and the Federalist worldview for over thirty years on the Court, Roger B. Taney tried to enshrine reactionary pro-slavery views on the eve of the Civil War, Melville Fuller undermined pro-labor legislation with the Lochner case, and so on. Liberals have learned recently that swift national changes in policy and regulations can happen with a single Court decision, but conservatives have known the same for over 200 years.

The time for turning to the Court for liberal change or resistance to Trump is over. There should be no more anxious June days spent waiting for seven men and two women in Washington to dictate the answers to the nation’s problems. Democrats need to turn their hope, anxiety, and ire towards the Democratic Party, liberal billionaires, and think tanks across the country. They need to push think tanks to craft coherent policy, the Democratic Party to more reliably field winnable candidates, and liberal billionaires to fund those candidates and policy initiatives at an adequate level. If liberals don’t continue to prioritize legislation over potential judicial victories, then we should prepare for more heartbreaking days like Tuesday.