In short, when we talk about the Court and crises of legitimacy, we need to appreciate that there is a long tradition, including among candid justices and lawyers who are very serious about the law, of challenging the metes & bounds of the Supreme Court’s power to say what the Constitution means. This has always been partisan but also involved fights over principle, and it has been a fight among people who believe in law, constitutionality, and adjudication. As it is today.
I’ve recently argued that the way to address politicization–in the sense of conservative dominance of the courts–is not de-politicization but counter-politicization, which I think is the lesson of history. I’ve argued for a jurisprudence that picks up new politically led awareness of the absolute importance of ballot access, the centrality of economic power to law and social order, and the urgency of addressing structural racialized inequality, the carceral state, and the special vulnerability of non-citizens. Stated abstractly, what such a jurisprudence would do is to generalize throughout the legal system a certain version of what liberty, equality, and democratic self-rule should amount to, enforcing these as the ground rules of politics (voting) and in protecting political minorities and the disenfranchised whose core interests are often trampled. This is a specific version of what all jurisprudence does–enforce ground rules, generalize core principles across the system, and attend specially to those who may lose out in other processes. Whether those ground rules are more democracy or more federalism, whether the principles are sensitive or blind to economic power, whether the marginalized constituencies are pharmaceutical companies or the undocumented are questions of substance that only a political fight over the meaning of law can fill in and make stick.