for Vox.com, May 3:
There are several structural reasons courts are a stronger ally for conservative movements than they are for progressive ones. For starters, in most constitutional cases courts only have the power to strike down a law—that is, to destroy an edifice that the legislature has built. The Supreme Court could repeal Obamacare, but it couldn’t have created the Affordable Care Act’s complex array of government-run marketplaces, subsidies, and mandates.
Litigation, in other words, is a far more potent tool in the hands of an anti-governmental movement than it is in the hands of one seeking to build a more robust regulatory and welfare state. It’s hard to cure poverty when your only tool is a bomb. . . .
Of course I do not believe that we should literally light the Supreme Court of the United States on fire, but I do believe that diminished public trust in the Court is a good thing. This institution has not served the American people well, and it’s time to start treating it that way.
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Appeared in the May 6, 2022, print edition as ‘Notable & Quotable: Courts.’