In the face of an enemy Supreme Court, the only option is for progressives to begin work on a long-term plan to recast the role of fundamental law in our society for the sake of majority rule—disempowering the courts and angling, when they can, to redo our undemocratic constitution itself. This will require taking a few pages from the conservative playbook of the last generation. It is conservatives who stole the originally progressive talking point that we are experiencing “government by judiciary.” It is conservatives who convinced wide swathes of the American people that it is the left, not the right, that too routinely uses constitutional law to enact its policy preferences, no matter what the text says. The truth is the reverse, and progressives need to take back the charge they lost. To do so, they need to abandon their routine temptation to collude with the higher judiciary opportunistically. Progressives must embrace democracy and its risks if they want to avoid the stigma of judicial activism that still haunts them from the past.
With respect to the American people, the judiciary has in effect declared that the most important questions about how we ought to order our life together are outside the purview of ‘things of their knowledge.’ Not that judges necessarily claim greater knowledge; they simply claim, and exercise, the power to decide. The citizens of this democratic republic are deemed to lack the competence for self-government…. The courts have not, and perhaps cannot, restrain themselves, and it may be that in the present regime no other effective restraints are available. If so, we are witnessing the end of democracy.