What Do Progressives Want for the Courts?

There's a tension between Progressives' efforts to delegitimize the courts and hopes the judiciary to constrain executive power.

Ramesh Ponnuru writing in the Washington Post:

the mood of bitter hostility toward the Supreme Court has been a general feature of Democratic politics for much of the past decade — and especially since its 2022 decision to allow states to prohibit abortion. That critique of the court is heartfelt for many progressives. But it has a flaw that is becoming more and more apparent in Trump's second term: The Democrats can't decide whether they want the institution to be stronger or weaker. . . .

Whatever merit progressive proposals to contract the power and prestige of the Supreme Court might have, they are not a plausible means of restoring it to its former role as the champion of liberal principles. A court with reduced jurisdiction, whose members fear removal by the political branches and whose decisions command little respect from the broader political culture: That's not an institution that can perform what Jackson recently called "the singular function of ensuring compliance with the Constitution" and "protecting people's rights."

A high regard for the court is particularly important now that progressives have (rightly) made it a priority to make Trump follow court orders. They can argue that the court is illegitimate or that Trump has a high duty to obey it. They seem unlikely to persuade the public that Trump has a solemn obligation to comply with an illegitimate court.

Comments

[Martinned2]

A high regard for the court is particularly important now that progressives have (rightly) made it a priority to make Trump follow court orders.

Persuading the court to give orders in the first place would be a start.

Since April 4, #SCOTUS has issued 15 rulings on 17 emergency applications filed by Trump (three birthright citizenship apps were consolidated).

It has granted relief to Trump ... in all 15 rulings.

It has written majority opinions in only 3.

Today's order is the 7th with no explanation *at all.*

https://bsky.app/profile/stevevladeck.bsky.social/post/3ltx5bf74hs2q

[RedheadedPharoh]

That speaks the lawfulness of Trumps actions to begin with.

[Martinned]

Well yes, in the sense that whatever the Supreme Court says is the law, is the law.

But you saw, even Josh is struggling to make it make sense.

[LexAquilia]

Now you trust Josh's hot takes? I guess you like the data & analysis that confirms your beliefs.

The fact that Trump is 15-0 and 2 still pending is a signal that it isn't SCOTUS that's gone off the rails, nor is it Trump. But these judge-shopped judges are exceeding their statutory authority and THEY are the ones being lawless.

But, as KJB so freely expresses it, it's not a matter of law or the constitution when it comes to a Leftist Doing What's Right and being on the Right Side of HERstory.

[gVOR08]

Murc’s Law is the commonly held fallacy that only Democrats have agency in American politics. Ponnuru is applying it to the Court. He sees the loss of respect for the Court and thinks the solution is for Democrats to somehow create respect for the Court out of thin air. The real solution is for the Court to behave respectably.

[JoeFromtheBronx]

Ramesh Ponnuru might not be the best person to read to find an objective analysis about this.

A high regard for the court is particularly important now that progressives have (rightly) made it a priority to make Trump follow court orders.

SCOTUS is repeatedly enabling Trump. A "high regard" for it helps Trump. A high regard for the courts might be important, since the lower courts have played a role in checking Trump, but "the court" is on the other hand regularly enabling him.

That is Jackson's criticism repeatedly -- the lower courts should be left to do their jobs and SCOTUS is wrongly stopping them.

[CountmontyC]

The purpose of the courts is not to check Trump or any other POTUS. The purpose of the courts is to rule on legal issues in a neutral fashion. The fact that SCOTUS has overruled the lower courts in such an overwhelming manner suggests that it is the lower courts behaving in a partisan manner.

[Commenter_XY]

This is the correct answer = The fact that SCOTUS has overruled the lower courts in such an overwhelming manner suggests that it is the lower courts behaving in a partisan manner.

[Martinned]

https://www.youtube.com/watch?v=cHxGUe1cjzM

[Sarcastr0]

The fact that SCOTUS has overruled the lower courts in such an overwhelming manner suggests that it is the lower courts behaving in a partisan manner.

I'm not sure how the first part suggests the second part.

In fact if we gotta choose...which is more likely to be behaving in a partisan manner?

1. A 9-person group, whose conservative ideological valiance is not a secret, and whose partisanship has been a subject of open debate.

2. A large group of judges from all parts, ages, and appointed by all types of Presidents. Who have never been seen as a unified ideological or partisan bloc before.

[LexAquilia]

Wow, and here Sacastr0 throws out the basic principles of our Justice System because he's not getting his preferred outcomes.

Kinda like what ya'll do with Democracy, Law, and Morality.

P.S. Your second point is quite the hilarious take. That's extremely disconnected from reality even for you Blue Anon Deep State whackos.

By Any Means Necessary, right Pantifa?

[Michael D]

Let’s be honest — the progressive agenda is clear. They aim to weaken the independence of the courts and elevate majoritarian rule as the ultimate source of power, unbound by constitutional limits or institutional checks.

In their view, the Constitution is not a safeguard of liberty but an obstacle to the will of the majority. Courts that stand in the way of that will are likewise seen as barriers to be bypassed or dismantled. What better way to bring the judiciary to heel than by constantly threatening court packing and pushing so-called “reforms” designed to erode judicial independence — all while launching sustained attacks on the Court’s legitimacy and the integrity of its justices?

Consider the following:
1. Court Packing Proposals: Prominent progressive politicians, including Senator Ed Markey and Representatives Jerry Nadler and Hank Johnson, introduced the Judiciary Act of 2021, which proposed expanding the Supreme Court from 9 to 13 justices.[¹] President Biden convened a commission to study court reform in 2021 under pressure from his party’s progressive wing.[²]

2. Statements Framing the Court as Illegitimate: After the Dobbs decision, prominent progressives including Rep. Alexandria Ocasio-Cortez and Sen. Elizabeth Warren referred to the Court as “illegitimate.”[³][⁴] These remarks are not merely expressions of dissent — they signal a political strategy to delegitimize rulings that conflict with progressive priorities.

3. Threats to Judicial Independence: Senator Chuck Schumer stood on the steps of the Supreme Court in 2020 and declared: “You have released the whirlwind and you will pay the price,” addressing Justices Gorsuch and Kavanaugh by name over an abortion case. This was broadly criticized — even by the Chief Justice — as an inappropriate threat to judicial independence.[⁵]

4. Efforts to Strip Judicial Review or Limit Jurisdiction: Progressive legal scholars and some Democratic lawmakers have endorsed proposals to strip courts of jurisdiction over certain types of legislation — for instance, laws related to voting rights or reproductive health — so courts cannot review them.[⁶]

These efforts do not reflect simple reform. They reflect a deeper philosophy: that democratic majorities — if large enough — should not be bound by constitutional checks, including the courts. And the judiciary, if not brought into ideological alignment, is to be marginalized.

⸻

Sources:

[1] “Democrats introduce bill to expand Supreme Court,” NBC News, April 15, 2021.
[2] “Biden’s Supreme Court commission releases report,” CNN, December 2021.
[3] “Ocasio-Cortez: Supreme Court rulings show it is ‘illegitimate’,” The Hill, June 2022.
[4] “Warren: SCOTUS ‘burned whatever legitimacy’ it had after Roe reversal,” NBC News, June 2022.
[5] “Chief Justice Roberts rebukes Schumer for comments,” NPR, March 2020.
[6] “The Case for Jurisdiction Stripping,” Harvard Law Review Blog, various progressive legal scholars.

⸻

While critics charge that the Court is ideologically conservative and politically biased, the actual record is more nuanced — and in many high-profile cases, the Court has respected precedent, limited itself to narrow rulings, or ruled against conservative expectations. Consider these examples:

⸻

1. ACA (Obamacare) Cases: Repeated Upholding of a Liberal Landmark Law
• NFIB v. Sebelius (2012): Chief Justice Roberts sided with the liberal wing to uphold the Affordable Care Act’s individual mandate under Congress’s taxing power, despite fierce conservative opposition.[¹]
• California v. Texas (2021): The Court again refused to strike down the ACA — in a 7-2 decision — for lack of standing. Even Trump-appointed Justices Kavanaugh and Barrett declined to overturn the law.[²]

Conclusion: The Court declined multiple opportunities to dismantle a key Democratic legislative achievement.

⸻

2. Respect for Stare Decisis (Until Rare Exceptions)
• Kisor v. Wilkie (2019): A 5-4 majority, including Justice Kagan writing the opinion and Justice Kavanaugh concurring, reaffirmed Auer deference (deference to administrative agencies interpreting their own regulations), showing the Court was not eager to overturn precedent on agency powers despite conservative critiques.[³]
• Dobbs v. Jackson Women’s Health (2022): Yes, this overruled Roe v. Wade, but the majority argued Roe itself deviated from constitutional text and precedent, and that stare decisis is not absolute — especially when precedent is seen as egregiously wrong or unworkable. Even so, the Court’s opinion went to great lengths to ground the ruling in history and legal method, not ideology.[⁴]

⸻

3. Liberal Outcomes in Criminal Law and Indian Law
• McGirt v. Oklahoma (2020): A 5-4 decision written by Justice Gorsuch held that a large portion of eastern Oklahoma remains Native American land under treaty obligations — a decision expanding tribal sovereignty.[⁵]
• Torres v. Madrid (2021): In a 5-3 ruling, the Court held that a police shooting constituted a “seizure” under the Fourth Amendment. The majority included Chief Justice Roberts and Justice Kavanaugh — both Republican-appointed — ruling in favor of expanded constitutional protections against police force.[⁶]

⸻

4. Voting Rights Cases That Defied Partisan Expectations
• Allen v. Milligan (2023): In a major surprise, Chief Justice Roberts and Justice Kavanaugh joined the liberal justices in ruling that Alabama’s congressional map likely violated the Voting Rights Act by diluting Black voting power — a decision widely applauded by civil rights groups.[⁷]

Conclusion: Even in a politically charged area like redistricting, the Court reaffirmed established voting rights doctrine.

⸻

Summary:

While certain decisions — especially Dobbs — have provoked fierce partisan reactions, the Court’s overall record reveals a complex jurisprudence that often respects precedent, limits itself to legal interpretation, and does not consistently favor conservative outcomes. In fact, several major conservative legislative or political goals have been rejected or curtailed by the Court.

So rather than being a tool of right-wing politics, the Court has often acted as a constitutional check — in line with its traditional role — and its decisions reflect that balance more than ideological bias.

⸻

Sources:
1. NFIB v. Sebelius, 567 U.S. 519 (2012).
2. California v. Texas, 593 U.S. ___ (2021).
3. Kisor v. Wilkie, 588 U.S. ___ (2019).
4. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022).
5. McGirt v. Oklahoma, 591 U.S. ___ (2020).
6. Torres v. Madrid, 592 U.S. ___ (2021).
7. Allen v. Milligan, 599 U.S. ___ (2023).

In light of this record, the claim that the Supreme Court is simply a partisan tool of conservatism does not hold up. Time and again, the Court has upheld liberal legislation like the Affordable Care Act, reaffirmed key precedents when appropriate, and issued rulings that defy ideological expectations — from expanding tribal sovereignty to striking down racially discriminatory voting maps. Even in controversial cases like Dobbs, the majority grounded its decision in constitutional interpretation, not partisan preference. Far from acting as a political arm of the right, the Court has demonstrated an ongoing commitment to the rule of law and the limits of its constitutional role. Efforts to delegitimize or restructure it — from court-packing to jurisdiction stripping — should be recognized for what they are: attempts to weaken an institution precisely because it sometimes resists the will of transient majorities.

[JoeFromtheBronx]

"President Biden convened a commission to study court reform in 2021 under pressure from his party’s progressive wing."

The point of the commission was to kick the can down the road. Anyway, reform regularly is about strengthening institutions as when the Catholic Church reformed itself in the face of the Protestant backlash or when it modernized in the 1960s.

"Statements Framing the Court as Illegitimate"

Criticism of a specific ruling? Like Republicans criticized Roe v. Wade? Kagan repeatedly noted it was not a "rare exception" for them to disrespect stare decisis in recent years. I suppose space restraints is why you left all of those dissents of her out.

SCOTUS sometimes having liberal results doesn't tell us much, especially 5-4 rulings turning on a conservative justice having an idiosyncratic specific concern about that area of law.

Scalia wrote some liberal opinions, too. He was overall still a conservative justice.

Some simplistic stereotype about how such and such is "simply" something is not useful. We should look at the thing as a whole. That is what diligent critics do.

"Even in controversial cases like Dobbs, the majority grounded its decision in constitutional interpretation, not partisan preference."

They selectively decided the opinion broadly, not following normal procedural practices to do so, and arbitrarily selectively singled out abortion as suggested by Thomas's concurrence.

"Let’s be honest — the progressive agenda is clear. They aim to weaken the independence of the courts and elevate majoritarian rule as the ultimate source of power, unbound by constitutional limits or institutional checks."

Conservatives regularly complain about courts blocking majoritarian rule etc. Progressives regularly --- let's be honest -- respect the independence of the courts. The two sides disagree on details. So, e.g., progressives think more gun regulations are allowable. THEN conservatives are not as big on majoritarian rule.

[Michael D]

Thank you for these points. Allow me to rebut them, individually:

1. “The point of the Biden court commission was to kick the can down the road.”

Rebuttal:
That may be partially true — and in fact, it reinforces the original point. President Biden’s Presidential Commission on the Supreme Court of the United States was convened under clear pressure from progressive activists and lawmakers demanding structural changes, especially in the wake of Dobbs, Brnovich, and other rulings. The commission ultimately declined to recommend drastic reforms such as court-packing or term limits. But its very creation was a political gesture — one acknowledged by both supporters and critics — intended to diffuse pressure from progressive activists who called the Court “illegitimate.”
• Fact: The commission’s report stated clearly that there was “profound disagreement” on court-packing and that these reforms risked undermining judicial legitimacy.
• Interpretation: If the commission was a delay tactic, it was a response to a reform campaign that sought to fundamentally restructure the judiciary based on dissatisfaction with outcomes — precisely the concern raised.

⸻

2. “Criticism of a specific ruling? Like Republicans criticizing Roe?”

Rebuttal:
Criticizing a ruling is not the issue. What’s different is the scale, language, and coordination of efforts by elected progressives to delegitimize the institution itself, not merely a decision.
• Example: In 2022, Rep. Ocasio-Cortez, Sen. Warren, and others did not simply criticize Dobbs — they called the entire Court illegitimate.
• Contrast: In decades of conservative criticism of Roe, few elected Republicans ever called the Court itself illegitimate — even when they believed the ruling to be badly reasoned. The focus remained on legal disagreement, not institutional sabotage.
• Important distinction: Dissent is not delegitimization. But coordinated messaging to undermine trust in the Court — tied to concurrent campaigns for structural reform — is something different.

⸻

3. “Kagan dissents show disrespect for stare decisis by conservatives.”

Rebuttal:
It’s true that Justice Kagan has criticized the majority’s handling of stare decisis. And in some cases — particularly Dobbs — her concern reflects a deep legal and philosophical divide. But it’s inaccurate to portray this as a recent or one-sided phenomenon.
• The Court has always overruled precedent, often with strong dissents. Brown v. Board overruled Plessy. Lawrence v. Texas overruled Bowers. Janus overruled Abood. Precedent is respected, but not unbreakable.
• In Dobbs, the Court outlined a multi-factor stare decisis test and argued that Roe was egregiously wrong and had proven unworkable.
• That’s not to say the reasoning was flawless — but it was consistent with prior justifications for overturning precedent (as even liberal justices have done).

⸻

4. “Scalia wrote liberal rulings — that doesn’t mean he wasn’t conservative.”

Rebuttal:
Exactly — and this point helps illustrate the core argument: the Court is more legally complex than it is politically partisan. When we point to liberal outcomes in recent rulings (Allen v. Milligan, McGirt v. Oklahoma, etc.), it’s not to deny that justices have ideological leanings — but to rebut the claim that the current Court is a predictable partisan instrument.
• Milligan (2023): Roberts and Kavanaugh sided with liberals in a major Voting Rights Act case.
• McGirt (2020): Gorsuch sided with liberals to affirm tribal sovereignty.

These are not just “idiosyncrasies” — they reflect genuine legal independence that defies simple conservative/liberal framing.

⸻

5. “Dobbs was selectively broad; Thomas suggested even more rollbacks.”

Rebuttal:
Thomas’s concurrence was not the opinion of the Court. The majority explicitly stated Dobbs applied only to abortion, which it distinguished from other privacy-based rights because it involved fetal life.
• Majority Opinion (Alito): “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
• That’s not arbitrary — it reflects long-standing legal arguments about the unique nature of abortion as involving competing rights (mother and unborn child), unlike contraception or same-sex marriage.

Note: That critics are uncomfortable with this legal reasoning does not make it illegitimate or partisan.

⸻

6. “Progressives respect court independence; conservatives also complain about courts.”

Rebuttal:
Both sides criticize the courts. But recent progressive efforts involve a coordinated campaign to delegitimize and structurally alter the Court precisely because of ideological disagreement — something not mirrored in recent conservative practice.
• Examples of progressive proposals:
• Expand the number of justices (Judiciary Act of 2021)
• Impose term limits via statute (likely unconstitutional)
• Strip courts of jurisdiction on certain issues
• Pack lower courts with ideologically aligned judges
• No recent conservative equivalent exists to this scale or intensity. Even when conservatives disagreed with decisions like Obergefell or NFIB v. Sebelius, they did not pursue court-packing or mass delegitimization.

⸻

7. “We should look at the institution as a whole.”

Rebuttal:
Agreed — and that’s exactly the point. When looking at the Court as a whole:
• It issues both conservative and liberal rulings.
• It overrules precedent with caution, not recklessness.
• It remains one of the few institutions in U.S. government still respected by broad segments of the public — though trust is declining under political pressure.

Calls for sweeping reform, court-packing, or branding it “illegitimate” when decisions go against one side do more to damage public trust than any ruling itself.

[Sarcastr0]

It is amazing how many people suddenly decide commissions are some kind of fast-moving achievement engine.

[Drewski]

Is this copied from the updated Grok or ChatGPT?

[Brett Bellmore]

"Let’s be honest — the progressive agenda is clear. They aim to weaken the independence of the courts and elevate majoritarian rule as the ultimate source of power, unbound by constitutional limits or institutional checks."

Not at all. That would be a consistent stance, albeit foolish.

They want to weaken the independence of the courts from the left, and elevate left-wing rule as the ultimate source of power, with the Constitution interpreted as mandating everything the left favors, and prohibiting everything the left opposes, regardless of who wins elections.

This looks majoritarian when the left wins elections, and anti-majoritarian when the left loses elections. But it's really nothing more complicated than "Heads we win, tails you lose."

[Sarcastr0]

Brett's utter blindness to his own deal continues to astound.

[Lee Moore]

Indeed. Consistency is one of those contemptible bourgeois values.

As Trotsky put it :

You do not understand this, holy men? We shall explain it to you. The terror of Tsarism was directed against the proletariat. . . . Our Extraordinary Commissions shoot landlords, capitalists, and generals . . . . Do you grasp this distinction? For us Communists it is quite sufficient.

[F.D. Wolf]

Everybody knows perfectly well what progressives want from courts: to enshrine progressive policies and block conservative policies. Any ruling that does so is "legitimate", while any ruling that does not is "illegitimate". Any ruling for Trump is "illegitimate", while any ruling against him is "legitimate".

[not guilty]

SCOTUS beclowned itself with Trump v. United States, 603 U.S. 593 (2024). A totally result-oriented opinion, cut from whole judicial cloth. (Like the Court's invention of qualified immunity for damages suits under 42 U.S.C. § 1983.)

I hope that Trump goes the way of Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), Plessy v. Ferguson, 163 U.S. 537 (1896), and Korematsu v. United States, 323 U.S. 214 (1944), and I hope its repudiation doesn't take nearly as long as the others.

[Frank Drackman]

You “beclown” yourself with every post

Frank “thats a Clown post, Bro!”

[Commenter_XY]

NG, you were simply wrong in your legal analysis re: Trump v CASA. And the section 3 case, and Jack Smith, and a number of cases.

Your reputation remains unsullied. 😉

[Lee Moore]

I find myself in the uncomfortable position of partially agreeing with not guilty.

Trump v United States was a poor decision. But not guilty self refutes on the whole cloth thing by noting (a small part of) the court’s previous form on inventing immunities.

We must recall however that many of the same folk who were correctly complaining about text free Presidential immunity, were in the same breath insisting on text free exceptions to the pardon power (self pardons.)

In Trump v United States SCOTUS was adopting impeccable sarcastroian jurisprudence - never mind the actual written law or lack of it, pay attention to the “practical upshots.”

Mr Wolf above has it right. Lefties believe in the shining sword of the independent court holding the executive to its limited powers, when the executive is their opponent. When the executive is their pal, it’s back to “practical upshots.”

The righties have a tendency to accept “practical upshots” jurisprudence when it cuts their way, while insisting that as a rule judges should be bound by the text.

In the end it comes down to the eternal question. Is hypocrisy a worse sin than openly and avowedly advocating wickedness ?

I agree with not guilty’s insistence (today) on discarding the contemptible “practical upshots” method. May he (or she etc) stay constant to the text, and join me in throwing rotten tomatoes at Sarcastro and his coven.

[Stephen Lathrop]

They seem unlikely to persuade the public that Trump has a solemn obligation to comply with an illegitimate court.

Leave aside that Trump has yet to encounter any occasion when the Court required him to do anything he did not prefer to do. What is the likelihood to persuade the public that an illegitimate Court will similarly empower a different Executive pursuing policies the illegitimate majority disapproves?

[Stephen Lathrop]

Ponnuru writes this nonsense:

Whatever merit progressive proposals to contract the power and prestige of the Supreme Court might have, they are not a plausible means of restoring it to its former role as the champion of liberal principles.

One modest progressive proposal to contract the power and prestige of the Supreme Court has been to require its members to honor an already-existing code of ethics, and to enforce results. If justices serve during good behavior, they ought not to serve during bad behavior. There is a lack of effective formal means outside the Court sufficient to distinguish which is which. Congress could supply that means by law, and is already empowered by the Constitution to do it.

[Lee Moore]

I had skipped past that sentence from Ponnuru too swiftly to savor its full delights.

Whatever merit progressive proposals to contract the power and prestige of the Supreme Court might have, they are not a plausible means of restoring it to its former role .....

....as the champion of honest obedience to the text ?
...as the champion of the constitution's bounds on a strictly limited government ?

Nah.

.....as the champion of liberal principles.

🙂

[Stephen Lathrop]

I'm guessing Ponnuru did not mean partisan principles, but referred instead to classically liberal principles. I am unsurprised you read his remark as partisan.

[Stephen Lathrop]

Another progressive means to contract the power and prestige of the Supreme Court, while increasing its perceived legitimacy, would reform certiorari. That should not be a power to limit case consideration only to points justices agree in advance to consider. There needs to be a requirement to stop dissecting cases, to bar pre-hearing from consideration any but policy questions a corrupt Court majority might want to overturn or effect.

Instead, get back to Cases and Controversies, taken full-strength. And as a further reinforcement, require the Court to give a full hearing, and write an opinion, on the merits of every case it agrees to hear. Congress should require the Court's jurisdiction over procedure to be limited only to cases which have already been shown sufficiently meritorious for one of the litigants to win on the merits. Then, with that shown, a review of procedure can take place to see whether the merits decision decides the case, or whether the procedures were insufficiently fair to permit that result.

It may seem both logical and more efficient to do what the Court is doing now, to consider procedures first, and make consideration of anything else subject matter for another case. Unfortunately, that has led to abuse, at the cost of the Court's legitimacy. After Trump v. United States, it ought to be obvious that to continue empowering the Court with that much discretion about what it wants to decide is folly.

It makes a mockery of the notion of appellate jurisdiction. If appellate jurisdiction is to mean anything, it must mean the appellate courts, including the Supreme Court, are stuck with the entire case decided below, and must consider all of it, and opine on all of it, before a decision is complete.

[Sarcastr0]

I think we need more assertions here couched as 'lets be honest' and 'everybody knows.'

Nothing says good faith like preemptively accusing those who disagree with you of dishonesty.

And the OP invites speculation on what progressives think; around here that means we're going to get silly and over-the-top pretty quick.

[Lee Moore]

Hmm. Does this mean you're going to stop telling me that you know what I "really" think ?