Letter to Editor: A Loss for Liberalism

Eli Sabin '18

Throughout American history, liberals have generally represented minorities and the powerless. From Republican abolitionists in the 19th century to Democratic Civil Rights activists in the 20th, this has meant fighting for an America that lives up to the standards of equality and justice set forth by the Constitution. But in a system of government where majority rules, a political coalition that advocates on behalf of a minority almost always faces opposition stronger than itself.

As the quest for women’s suffrage and the fight to end Jim Crow demonstrate, it can take decades to gather the necessary support to change the status quo and achieve progress. For liberals to succeed in transforming America, elections must be won, and minority groups, by definition, cannot do so alone.

This built-in handicap has made the Supreme Court essential to the advancement of a liberal agenda. Time and time again, congressional inaction has forced liberals to rely on the nation’s highest court to push the country toward a more equitable future. In the 1950s, for example, liberals could not get Congress to outlaw “separate but equal” education, so change only arrived when the court ruled in Brown v. The Board of Education. More recently, the LGBT community was forced to wait until Obergefell v. Hodges for the right to marry those they love.

Unfortunately, this kind of judicial activism can only make up for progressives’ disadvantages if there are five reliably liberal votes on the Supreme Court. The composition of the court, of course, depends on who is president when a vacancy occurs. Or at least, that is how it’s supposed to work. When Justice Antonin Scalia, a conservative hero, died in February 2016, it appeared that after the confirmation of Former President Barack Obama’s nominee, Merrick Garland, Democrats would hold a 5-4 advantage, allowing them to push American law in a progressive direction.

But the Republicans did not play by the old rules. Instead, Senate Majority Leader Mitch McConnell (R-KY) implemented a bold and unprecedented strategy of obstructionism, blocking Garland from even receiving a confirmation hearing. And when Donald Trump narrowly won the presidential election this fall, the chance to flip the Court vanished. On Tuesday, January 31, President Trump nominated Neil Gorsuch to fill the vacant seat, all but ensuring a conservative-dominated Supreme Court for many years to come.

Conservative judges like Neil Gorsuch are often strict textualists, claiming to derive their decisions solely from the text of the laws they are asked to rule on. Justice Scalia and Judge Gorsuch both go a step further by ascribing to the judicial philosophy of originalism, which says that interpretations of the Constitution should give special weight to the original intent of the founding fathers. Based on these two connected theories, conservatives argue that the purpose of the courts is solely to interpret and apply the law, without invoking their own beliefs or any modern values.

While this philosophy is not necessarily incorrect, it is problematic. For one, it ignores the fact that the people who wrote our laws generally lived in a society that was more racist, sexist, and classist than the one we live in today. And second, it means that the court system cannot compensate for the disadvantages minority groups confront in the legislative process. While America would be better off if we achieved social progress through legislation and not court decisions, our system of majority rules makes this extremely difficult.

Conservative courts, however, not only fail to create progress, they often actively impede it. For example, past conservative court decisions have weakened policies designed to help minority students get into college and graduate school (Regents of UCD v. Bakke); protected and expanded the influence of money in politics (Buckley v. Valeo, Citizens United v. FEC); and allowed states to restrict voting rights with little federal oversight (Shelby County v. Holder).

President Trump’s nomination of Neil Gorsuch to the Supreme Court means that American minorities will continue to face discrimination and fewer opportunities. If America is to be a country that fosters justice and prosperity for all its citizens, Senate Democrats must use the power of the filibuster to block Judge Gorsuch’s confirmation and propose the nomination of a moderate judge who will uphold our Constitutional commitment to equality for all. Progress in American society depends on it.

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Letter to Editor: A Loss for Liberalism