Two law professors writing in The Guardian argue that progressives should prioritize "disempowering" federal courts so elected majorities can pursue policies without judicial checks. Critics, including legal scholar Steve Vladeck, warn this risks enabling "tyrannies of the majority." Historical cases such as Korematsu (1944) and Buck v. Bell (1927) are cited as examples where deference to political branches produced grave injustices. The article cautions that weakening judicial review could backfire on progressive causes and endanger minority protections.
Progressive Call To 'Disempower' Federal Courts Sparks Fierce Criticism
These Progressives Seek to 'Disempower' the Courts
Writing in The Guardian, law professors Ryan Doerfler and Samuel Moyn propose that progressives should stop trying to defend the judiciary from conservative influence and instead make "disempowering" federal courts a core political objective. They argue that elected majorities — rather than an independent judiciary — should be able to implement policy without judicial interference.
Their prescription is stark: reassign power away from the judiciary and toward the political branches so democratically accountable officials can act without being checked by courts. The authors maintain this shift would let progressive policy succeed unhindered by conservative judges.
Why Critics Are Alarmed
Many observers warn that weakening judicial review risks opening the door to abuses by majorities and to erosions of minority rights. Liberal legal scholar Steve Vladeck, who has criticized Doerfler and Moyn, summarized the concern succinctly:
"Doerfler and Moyn are quite clear that their goal is to empower the people at the expense of the judiciary, period. But as attractive as that viewpoint might be in the abstract, it seems to me that the last 11 months have driven home, in technicolor, the importance of a judiciary with a modicum of independence—which, among other things, can stand up to tyrannies of the majority."
Historical Warnings
History offers sobering examples of what can happen when courts defer too readily to elected branches. Two of the Supreme Court's most widely condemned decisions illustrate the danger:
- Korematsu v. United States (1944): The Court upheld the wartime internment of Japanese-Americans, reasoning that courts should not second-guess certain executive measures. That decision is now regarded as a profound error.
- Buck v. Bell (1927): The Court approved a compulsory sterilization law, with Justice Oliver Wendell Holmes Jr. asserting that democratic enactment was sufficient justification. The ruling is today condemned for its eugenic underpinnings and the harm it inflicted on vulnerable people.
Under a regime that intentionally strips judicial oversight, similar injustices could persist uncorrected because courts would lack the authority or inclination to intervene.
What This Means For Progressives
While Doerfler and Moyn aim to empower popular majorities to advance progressive goals, critics argue that removing an independent judicial check could make those gains fragile — especially when political power shifts. Judicial review has historically served as a bulwark for minority rights and constitutional limits; surrendering it may produce short-term policy wins but long-term risks.
Progressives considering this strategy should weigh the temptation of unfettered majority rule against the historical record and the potential for rights erosion when courts are sidelined.
Originally appeared on Reason.com.
