Last week, the Supreme Court’s 6–3, party-line decision in Louisiana v. Callais gutted Section 2 of the Voting Rights Act, the law Congress enacted to stop politicians from drawing district maps that erase the political power of Black and brown voters. The ruling is the latest salvo in the Roberts court’s antidemocracy project. It is a partisan, ideological judicial campaign with a long paper trail that began with Citizens United, when the Roberts court opened the floodgates to corporate money in politics. Another important milestone in the court’s broader shift to the right was Trump v. United States, in which the court declared President Trump above the law by granting him immunity from criminal prosecution for “official” acts.
The pro-democracy community is sounding the alarm that we desperately need judicial reforms. The reproductive rights and gun safety advocacy communities have also recognized this, in the wake of devastating losses when the Roberts court stripped women of rights to bodily autonomy and ordained that the Constitution effectively renders elected leaders powerless to stop school shootings.
One group, though, has been largely silent on the court’s direction and how to fight it. It is time for the progressive economic policy community to make court reform a “must do” governing priority for them too. No economic agenda is complete without a plan to fix the courts, because the same broken courts that are dismantling multiracial democracy are also a major structural obstacle to reining in corporate power and delivering economic relief for working Americans.
It’s not just that the Supreme Court is protecting President Trump. It is also standing in the way of any meaningful economic reform. Just like Chief Justice Roberts embarked on a decades-long crusade to dismantle the Voting Rights Act, under his leadership the court has also steadily worked to entrench our K-shaped economy. Citizens United flooded our politics with corporate money, making it harder to pass the laws that would curb corporate power in the first place.
For workers and consumers who try to fight back in court, the Roberts court has also spent decades systematically making it harder to enforce the existing laws on the books—including raising the bar to bringing antitrust suits, blessing fine-print forced arbitration clauses that deprive workers of their day in court, and gutting the class actions that once allowed ordinary people to pool their claims against powerful corporations. A recent National Bureau of Economic Research working paper tracked every economically significant Supreme Court case from 1953 to the present and found the partisan gap in pro-wealthy rulings has grown to 47 percentage points by 2022, up from near zero in the 1950s.
And we don’t just have a Supreme Court problem. The lower courts have also blocked hundreds of billions of dollars in relief for working families before it ever had a chance to reach them. For example, courts threw out the Federal Trade Commission’s ban on noncompete clauses, which would have freed 30 million workers to change jobs and boosted wages by over $400 billion over the next decade. They blocked the Consumer Financial Protection Bureau’s crackdown on credit card late fees, handing card companies an estimated $10 billion in profits. Courts blocked or defanged rules on nursing home safety, overtime pay, medical debt, and more. None of it ever came into effect.
Corporate lawyers have mastered this playbook. Thanks to forum shopping—filing in the single most favorable district court—combined with the ability of single judges to grant nationwide relief, individual lower court judges in regional courthouses have become de facto veto-holders over national policy. Indeed, in all of the examples above, a single Trump-appointed judge in Texas, acting alone, was able to issue an order that blocked pocketbook relief for millions of working-class Americans across the country.
The result is a judicial system in which monied interests increasingly use courts as the tool of choice to block any attempt to limit corporate rent-seeking and abuse. NYU’s Institute for Policy Integrity tracked over 2,300 major federal rules issued since 1996. They found that courts struck down major rules only about one-tenth of the time in the 1990s but now invalidate over half.
For some, a call to rein in the courts might seem counterintuitive at a time when it often feels as if rulings from brave district judges are the only thing keeping the rule of law from fully unraveling. But the data suggests otherwise: The Supreme Court has sided with the Trump administration 80 percent of the time on emergency shadow docket rulings, often with no explanation at all. And courts have let Trump administration policies take effect while cases wind through the courts about 70 percent of the time. The judiciary is not saving us. It needs saving.
In fact, alarm bells are going off inside the judiciary itself. Justice Ketanji Brown Jackson has accused her colleagues of “Calvinball jurisprudence,” with one rule: “This Administration always wins.” She’s not alone. Last October, The New York Times surveyed federal district court judges and found dozens willing to speak out: One compared their court’s relationship with the Supreme Court to “a war zone”; another called it flatly a “judicial crisis.”
So what do we do?
Anyone who cares about a fair economy should demand that their elected leaders have a clear, specific plan for court reform. No policymaker can credibly promise working-class Americans economic relief without a plan to prevent courts from blocking its delivery. And don’t accept promises of a “commission” or “task force” as an answer. That’s D.C.-speak for I feel no urgency, and in this moment, no urgency is itself a policy choice.
As for specific reforms, on the Supreme Court, there are at least three serious options, which are not mutually exclusive: Use Congress’s constitutional authority to strip it of jurisdiction over certain categories of cases, adopt a supermajority requirement for constitutional rulings, or expand its size with staggered term limits—after which justices could continue to hear cases in the lower courts, preserving the life tenure required by the Constitution. If we expand, go big. Don’t just stop at three or four seats, which continues the cycle of high-stakes partisan battles. Go to 20, 30, or 50 seats, with justices hearing cases in randomly selected smaller panels. At that scale, no single nomination becomes a constitutional crisis, and no justice is a famous politician in robes. Do the same for the courts of appeals.
On forum shopping: Create a specialized circuit for challenges to federal rules of national scope like the noncompete rule, or a nationwide lottery to assign such cases. This is a fix that could be genuinely bipartisan, since Democrats objected when Texas judges blocked President Biden’s policies and the right now objects when blue-district judges are blocking President Trump’s.
On regulatory litigation, reform the Administrative Procedure Act. The APA was written in 1946 to ensure federal agencies followed fair procedures. It has since been weaponized by corporate lawyers into a tool for killing policies on procedural technicalities, while relief like wage increases and consumer protections never reaches the people it was designed to help. When an agency acts within the statutory authority Congress granted it, courts should defer to those policy judgments. Congress wrote the law. Congress delegated the authority. Unelected judges shouldn’t get the last word.
The reproductive rights, gun safety, and pro-democracy communities recognize that court reform is a prerequisite for their agenda. The economic policy community is still catching up. Callais is a reminder that this is the same fight. You cannot have a democracy that delivers for working people without courts that allow democracy to function.
Court reform is not a boutique legal argument. It must be a governing priority.