Illustration: Christoph Hitz

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


ONCE UPON A TIME, liberals regarded the U.S. Supreme Court as a beacon of freedom and decency. In the middle decades of the past century, it struck down the whites-only primary, decreed an end to segregation in public schools, established the right to privacy in birth control and abortion, ensured that every defendant would have an attorney — and required Richard Nixon to share his nasty White House tapes with the rest of the country. While politicians waffled and schemed, such men as Earl Warren, William Brennan, Thurgood Marshall, and Harry Blackmun made “justice” a reality as well as a title.

So it’s not surprising that as soon as Sandra Day O’Connor announced her retirement, a brigade of battle-ready activists leaped into the fray, determined to stop conservatives from conquering the one branch of government that is still expected to stand for civic virtue. “Our very national identity hangs in the balance,” warned People for the American Way.

But the frenzied focus on the Supreme Court ignores a civic reality that our ideological forebears knew all too well. Under the Constitution, the Court is the most undemocratic branch of government. It was expressly designed to slow down social changes that Congress or the state legislatures might enact. With her famous swing vote, Justice O’Connor was able to wield tremendous and unjustified power — which she used both to protect women’s control over their own bodies and to award the presidency to a governor from Texas who had lost the popular vote.

Throughout most of American history, reformers and radicals denounced the Court’s unelected, life-tenured potentates in their priestlike robes — regardless of which president appointed them — and with good reason: For much of the 19th and 20th centuries, the justices ruled consistently against social movements that struggled for a more humane America. They struck down a progressive income tax enacted by Congress, allowed lower courts to levy crippling penalties on labor organizers, and decreed nearly every major act of the early New Deal unconstitutional.

The Warren Court thankfully departed from such benighted traditions. But as welcome ruling followed welcome ruling through the 1960s and early ’70s, many progressives seemed to forget that only popular majorities can secure the rights of individuals from attack and erosion. Roe v. Wade is a case in point. That landmark 1973 ruling cut short the slow but steady passage of liberal abortion laws by state legislatures. As Ruth Bader Ginsburg wrote before she joined the Court, the ruling in Roe “halted a political process that was moving in a reform direction and thereby…deferred stable settlement of the issue.”

In the wake of Roe, the anti-abortion movement exploded, impelled by the same rage at “judge-made law” that was once the province of the left. Pro-choicers and their allies then rushed to defend the enemy of their enemy — the Court’s perilous liberal majority. Every four years, friends would insist that they were casting their votes for such uninspiring Democrats as Walter Mondale, Michael Dukakis, and Al Gore only “because of the Supreme Court.”

The propagandists of the right learned how to exploit this state of mind. Time and again, they have played the populist card, even as Republican presidents worked to pack the Court with their own breed of judges. As one conservative columnist put it recently, “Every time the people of the country speak through their legislatures on the hot-button issues of the day…the army of lawyers of the Left line up at the courthouse steps to put a stop to the will of the people.”

When the right’s hypocrisy can masquerade as common sense — and help Republicans get elected — this is not a conflict we can win. For a vibrant, self-confident left, the Court should be the first resort only for those people, such as lawyerless prisoners, who have little chance to sway public opinion on their own. But when it comes to the broader rights of citizens, the focus on blocking right-wing justices, pursued to the near-exclusion of other issues, can take up too much of the vigor and resources needed for the core undertaking of democratic politics: mobilizing ordinary Americans to support a vision of social justice, and fielding candidates able to carry it out. Progressives began that task with gusto in 2004 — despite an awkward, lackluster nominee — and came remarkably close to victory. We can fight against conservative bench-packing without turning the courthouse into our Alamo. Why dig in for a last-ditch defense when we have just begun to move?

WE'LL BE BLUNT

It is astonishingly hard keeping a newsroom afloat these days, and we need to raise $253,000 in online donations quickly, by October 7.

The short of it: Last year, we had to cut $1 million from our budget so we could have any chance of breaking even by the time our fiscal year ended in June. And despite a huge rally from so many of you leading up to the deadline, we still came up a bit short on the whole. We canā€™t let that happen again. We have no wiggle room to begin with, and now we have a hole to dig out of.

Readers also told us to just give it to you straight when we need to ask for your support, and seeing how matter-of-factly explaining our inner workings, our challenges and finances, can bring more of you in has been a real silver lining. So our online membership lead, Brian, lays it all out for you in his personal, insider account (that literally puts his skin in the game!) of how urgent things are right now.

The upshot: Being able to rally $253,000 in donations over these next few weeks is vitally important simply because it is the number that keeps us right on track, helping make sure we don't end up with a bigger gap than can be filled again, helping us avoid any significant (and knowable) cash-flow crunches for now. We used to be more nonchalant about coming up short this time of year, thinking we can make it by the time June rolls around. Not anymore.

Because the in-depth journalism on underreported beats and unique perspectives on the daily news you turn to Mother Jones for is only possible because readers fund us. Corporations and powerful people with deep pockets will never sustain the type of journalism we exist to do. The only investors who wonā€™t let independent, investigative journalism down are the people who actually care about its futureā€”you.

And we need readers to show up for us big timeā€”again.

Getting just 10 percent of the people who care enough about our work to be reading this blurb to part with a few bucks would be utterly transformative for us, and that's very much what we need to keep charging hard in this financially uncertain, high-stakes year.

If you can right now, please support the journalism you get from Mother Jones with a donation at whatever amount works for you. And please do it now, before you move on to whatever you're about to do next and think maybe you'll get to it later, because every gift matters and we really need to see a strong response if we're going to raise the $253,000 we need in less than three weeks.

payment methods

WE'LL BE BLUNT

It is astonishingly hard keeping a newsroom afloat these days, and we need to raise $253,000 in online donations quickly, by October 7.

The short of it: Last year, we had to cut $1 million from our budget so we could have any chance of breaking even by the time our fiscal year ended in June. And despite a huge rally from so many of you leading up to the deadline, we still came up a bit short on the whole. We canā€™t let that happen again. We have no wiggle room to begin with, and now we have a hole to dig out of.

Readers also told us to just give it to you straight when we need to ask for your support, and seeing how matter-of-factly explaining our inner workings, our challenges and finances, can bring more of you in has been a real silver lining. So our online membership lead, Brian, lays it all out for you in his personal, insider account (that literally puts his skin in the game!) of how urgent things are right now.

The upshot: Being able to rally $253,000 in donations over these next few weeks is vitally important simply because it is the number that keeps us right on track, helping make sure we don't end up with a bigger gap than can be filled again, helping us avoid any significant (and knowable) cash-flow crunches for now. We used to be more nonchalant about coming up short this time of year, thinking we can make it by the time June rolls around. Not anymore.

Because the in-depth journalism on underreported beats and unique perspectives on the daily news you turn to Mother Jones for is only possible because readers fund us. Corporations and powerful people with deep pockets will never sustain the type of journalism we exist to do. The only investors who wonā€™t let independent, investigative journalism down are the people who actually care about its futureā€”you.

And we need readers to show up for us big timeā€”again.

Getting just 10 percent of the people who care enough about our work to be reading this blurb to part with a few bucks would be utterly transformative for us, and that's very much what we need to keep charging hard in this financially uncertain, high-stakes year.

If you can right now, please support the journalism you get from Mother Jones with a donation at whatever amount works for you. And please do it now, before you move on to whatever you're about to do next and think maybe you'll get to it later, because every gift matters and we really need to see a strong response if we're going to raise the $253,000 we need in less than three weeks.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate