Hollow Tropes: Fresh Perspectives on Courts, Politics, and Inequality
In April, 2010, the New York Times reported that President Obama had "spoken disparagingly about liberal victories before the U.S. Supreme Court in the 1960s and the 1970s." I Obama remarked that activist, liberal judges of that era, like activist conservative judges today, "ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically." The President uttered these remarks against the backdrop of a Roberts' Court campaign finance ruling that ended restrictions on corporate spending in elections a decision that Obama publicly rebuked at a State of the Union address. Although some commentators expressed surprise at Obama's remarks, he had expressed a similar sentiment in a campaign book when he wrote, "[i]n our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy."
The sentiments of the President, a former professor of constitutional law, also happen to reflect perspectives in recent scholarship about constitutional law. This scholarship, all written by highly regarded liberal academics, offers a skeptical assessment of federal courts' value as problem solvers of complex social and economic matters. The pessimistic appraisal is most clearly and most often associated with the claim that affirmative constitutional litigation in the U.S. Supreme Court offered bleak prospects - a "hollow hope" - of fundamental social change. Scholars' calls for "judicial minimalism" and to take the constitution away from the courts strike a similar chord.