I recognize that progressives still face obstacles to achieving their goals through Congress. Two women or men who married in, say, California would still be legally married in South Carolina even if it stopped performing same-sex weddings. But the House bill would require one state to recognize another state’s marriage. The court could still issue a ruling allowing states to stop performing same-sex marriages. As a result, the courts have tended to dominate federal policy, by default.īut after the court’s abortion decision in June contained language that seemed as if it might threaten same-sex marriage rights, House Democrats quickly proposed a marriage bill that would defang any future court decision. More recently, however, Congress has been too polarized and gridlocked to respond to court decisions. The law was an explicit response to a Supreme Court ruling against Ledbetter. Congress took this approach with civil rights starting in the 1980s, including with the Lilly Ledbetter Fair Pay Act of 2009, which made it easier for workers to sue for pay discrimination.

When the court overturns a specific law, Congress can often pass a new law, written differently, that accomplishes many of the same goals. “You try and persuade, and if you do, the country follows you.” And that you do through democratic politics if you want it to be a democracy,” Kramer recently said on Ezra Klein’s podcast.

“If you want a better government, you have to actively get yourself engaged in creating it. At the federal level, Congress has more authority to defy court decisions than many people realize. At the state level, progressives still have the ability to protect abortion rights, so long as they can persuade enough voters - as happened in Kansas this week. The founders did not design the court to be the final arbiter of American politics, anyway. But under the current court, it will no longer work. That tactic worked under the liberal Supreme Court of the 1950s and 1960s and even sometimes under the more conservative court of recent decades.

They have instead relied on courts to deliver victories for civil rights and other policies. Larry Kramer, a former dean of Stanford Law School, argues that many progressives have made the mistake of paying relatively little attention to this strategy in recent decades. They involve the basic tools of democratic politics: winning over public opinion and winning elections. Some options are fairly radical, like changing the size of the court or passing a law declaring any subject to be off limits from Supreme Court review (both of which, to be fair, have happened in previous centuries).

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