Congressional Failure, Not Judicial Betrayal, Explains the Left's Loss of Rights
Source: Harry Blain. "We Can’t Blame the Supreme Court for Congress’s Problems." September 27, 2026. jacobin.com
The Gist
The author argues that people on the left are wrong to blame the Supreme Court alone for taking away rights like abortion access — the real problem is that Congress never passed laws to protect those rights in the first place, and our political system has let the Court become the final word on everything instead of elected lawmakers. Basically: don't just be mad at the referees when your own team failed to score for fifty years.
Conclusion
The American left's anger should be directed primarily at an ineffective, structurally obstructionist Congress and at the broader problem of judicial supremacy itself, rather than simply blaming the Supreme Court for reversing decisions like Roe v. Wade.
Premises
- When Roe v. Wade was overturned, Democrats blamed the Court for 'treachery' rather than acknowledging that Congress failed for fifty years to codify abortion rights into statutory law.
- The Constitution is designed in a way that makes Congress prone to delay and obstruction rather than decisive action on pressing issues.
- The Left's relationship with the Court has been inconsistent: it celebrated the Court after favorable rulings (Brown v. Board, Roe, Casey) but turned hostile only once the Court's makeup became unfavorable, revealing dependence on judicial favor rather than democratic lawmaking.
- The deeper structural problem, as argued by legal scholars Bowie and Renan, is the near-universal, bipartisan acceptance that the Supreme Court should be the final arbiter of constitutional disputes, which has displaced government by the people.
- Relying on the Court to protect rights rather than securing them through legislation leaves those rights perpetually vulnerable to reversal when the Court's composition changes.
Assumptions
- Congress could have codified rights like abortion access into law if it had acted differently, and its failure to do so was a choice or structural flaw rather than an impossibility.
- Judicial supremacy (the norm that the Court has final say on constitutional questions) is itself illegitimate or harmful to democracy, rather than a necessary check on majoritarian government.
- The Left's historical praise of the Court (Brown, Roe) was itself a mistake or overreliance, rather than an appropriate response to correct rulings.
- Political and structural reform of Congress (or of judicial supremacy) is more achievable or more appropriate than reforming the Court directly.
- The current gridlock in Congress stems primarily from constitutional design rather than from more contingent factors like polarization, filibuster rules, or party strategy.