The role of the court has shifted and with the conservative majority, the liberal justices had previously "proceeded as if their conservative peers would continue to take their own institution’s legitimacy seriously."
But over the last several months, that has also changed.
"Yet with the conservative justices shattering the Supreme Court’s non-partisan image during Trump’s second term, liberals are not adjusting much," Doerfler and Moyn wrote. "The liberal justices – Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor – have become much more aggressive in their dissents. But they disagree with one another about how far to concede that their conservative colleagues have given up any concern for institutional legitimacy. Encouragingly, Jackson pivoted to 'warning the public that the boat is sinking' – as journalist Jodi Kantor put it in a much-noticed reported piece. Jackson’s fellow liberals, though, did not follow her in this regard, worrying her strategy of pulling the 'fire alarm' was 'diluting' their collective 'impact.'"
By now, Trump has used a "shadow docket" of emergency orders to his advantage and to advance his policies.
"Similarly, many liberal lawyers have focused their criticism on the manner in which the Supreme Court has advanced its noxious agenda – issuing major rulings via the 'shadow' docket, without full-dress lawyering, and leaving out reasoning in support of its decisions," according to the writers.
Critics have argued that the conservative-majority Supreme Court, including Trump's appointees, has used the shadow docket to issue consequential rulings on controversial issues like abortion, voting rights, and immigration with minimal explanation or public deliberation, effectively allowing the court to reshape law through expedited procedures that bypass traditional briefing and oral argument requirements.
Now, "progressives are increasingly converging on the idea of both expanding and 'disempowering' federal courts and looking to see how to shake up the status quo."
"Rather than adhere to the same institutionalist strategies that helped our current crisis, reformers must insist on remaking institutions like the US supreme court so that Americans don’t have to suffer future decades of oligarchy-facilitating rule that makes a parody of the democracy they were promised," Doerfler and Moyn wrote.
"In Trump’s second term, the Republican-appointed majority on the Supreme Court has brought their institution to the brink of illegitimacy. Far from pulling it back from the edge, our goal has to be to push it off," the writers added.
