Kate Andrias –
Recently on this blog, Sabeel Rahman and Ganesh Sitaraman detailed the growing interest among public law scholars in questions of power, inequality, and political economy. One feature of the emerging scholarship, they correctly note, is that it directs its attention not primarily to courts, but to legislators and social movements; it focuses not primarily on questions of judicial review but on problems of institutional design and constitutional structure.
There is good reason for the non-juridical focus, as I and others have previously argued. Courts have rarely been leaders of progressive change, especially in the absence of well-organized social movements. On economic issues in particular, courts have tended to be regressive. Against this background and given the Court’s current makeup, relying on litigation as the primary method for opposing economic inequality would be a fool’s errand. Moreover, for public law scholars committed to building a more democratic and egalitarian political economy, there are normative reasons to focus beyond courts. Courts, after all, are not fundamentally democratic or egalitarian institutions. There is an irony in relying on elite, nondemocratic institutions to achieve a more egalitarian distribution of power and resources.