As you have said here, “returning the Supreme Court to a lesser place in our system might make for a healthier democracy.” However, this is not what the so-called “conservative movement” has in mind. Instead, the goal is to revive the version of substantive due process embodied in Locher v. New York, whereby the Supreme Court struck down laws infringing on “economic liberty” or “private contract rights.” Lochnerism reigned from 1897 to 1937, during which it was used to strike down labor laws and much of the early New Deal. Once thoroughly discredited, Locherism has been enjoying a comeback. In 2012, four justices voted to strike down the Affordable Care Act, which Justice Goldberg rightly characterized as Lochnerism.
The “conservative movement” – let’s call it what it really is, a radical movement underwritten by plutocrats with no sense of social obligation – can see the writing on the wall. The influence of older white voters is fading, so power needs to be held by undemocratic means. The first bulwark is the Senate. Because the Constitution awards two votes per state without regard to population, the Senate was controlled in 2015 by 54 Republican Senators who received 20 million fewer votes than their 46 Democratic colleagues. The second bulwark is gerrymandering, which tilts the field in the House. The third bulwark is voter ID laws, the "cleansing" of voter registration roles, and other voting barriers targeted at Democratic voters. The fourth bulwark is unlimited dark money which, in the name of free speech, permits plutocrats to buy elections. The fifth bulwark is, or soon will be, the Supreme Court, standing ready to invalidate any liberal proposals that manage to be enacted into law despite the other impediments. The Court has already opened the door to unlimited dark money and indicated its indifference to gerrymandering and voting barriers.
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