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1 The passing away of Justice Ginsburg #RBG and the prospect of decades of an alt-right domination of #SCOTUS under the mantle of 'the rule of law' will shed light on progressive liberals commitment to social change via courts and litigation and the law/politics distinction
2 For the first half of the twentieth century, a majority of progressive liberals in the US invested their intellectual resources in defending judicial restraint against a largely conservative Court ("Lochner era").
3 Brown v. Board of Education, and the Warren Court more generally, forced later generations of progressives to rethink this political commitment and to defend judicial activism to varying degrees.
4 The consolidation of conservative power, particularly under the Rehnquist Court, brought back progressive unease with activism and with the role of the Court in advancing social change
5 This unease prompted some progressives in 1980s to turn unsuccessfully to history -- even originalism -- to offer a more progressive account of the republican tradition. Many retracted to “minimalism” or revived “popular constitutionalism,” which watered down the Court’s role
6 George W. Bush's 'war on terror' revived limited hopes that SCOTUS will be a bastion of rights (with cases like Rasul and Boumeddienne); but the struggle between Obama and the Court (campaign finance; health care) changed the liberal attitude to the Court.
7 Now, with Trump's judicial appointments, liberals will need to look elsewhere. What all this shows is that liberal attitudes could not, indeed cannot, produce a consistent, principled support for either judicial activism or restraint (bcoz it depends on who is doing what)
8 My "The State of Progressive Constitutional Theory: The Paradox of Constitutional Democracy and the Project of Political Justification" argues that institutional circumvention of political conflict is no less controversial than the substance it avoids https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2132397
9 Similarly in the case of #Brexit, supporting particular legal victories should not make progressives abandon skepticism of the 'rule of law', the intertwinement of law/politics, and the general role of the judiciary. I made this point with @pmpoc here https://ukconstitutionallaw.org/2016/11/10/paul-oconnell-and-nimer-sultany-miller-and-the-politics-of-the-judiciary/
10 Ultimately, progressives and the left should reconnect with traditions of protest, social struggle, popular resistance in order to achieve real change. Rather than leave poor communities prey to the right and focus on elite institutions like high courts.
