The Changing Role of the Courts

Advocacy groups that tried to defend federal net neutrality rules in court won't file an appeal, saying they don't trust the Supreme Court to rule fairly on the issue.

Net neutrality rules were implemented by the Federal Communications Commission during the Obama era, repealed during Trump's first term, and revived under Biden. Telecom lobby groups challenged the Biden-era restoration of net neutrality rules and beat the FCC at the US Court of Appeals for the 6th Circuit.

While the FCC is now run by Republicans who oppose net neutrality rules, advocacy groups that were involved in the litigation could appeal the ruling. But they won't, saying in a press release that there isn't much point because of the conservative majorities at both the FCC and Supreme Court. Even if the Supreme Court overturned the appeals court ruling, the current FCC would almost certainly eliminate the rules again.

"Trump's election flipped the FCC majority back to ideologues who've always taken the broadband industry's side on this crucial issue. And the justices making up the current Supreme Court majority have shown hostility toward sound legal reasoning on this precise question and a host of other topics too," said Matt Wood, VP of policy and general counsel at Free Press.

The Supreme Court delivered a string of major losses for liberal Americans in recent weeks. Two in particular stand out: In United States v. Skrmetti, the Court’s conservative majority upheld a state law outlawing minors’ access to puberty blockers and hormones to treat gender dysphoria. In Mahmoud v. Taylor, the justices created a new constitutional entitlement for religious parents to shield their children from learning about LGBTQ people in public schools.

Defeats like these have become the norm since Donald Trump jolted the Court rightward. For many progressives, the narrative is straightforward: Ambitious, doctrinaire, Republican-appointed justices are systematically dismantling liberal precedents over the impassioned but impotent dissents of their Democratic-appointed colleagues.

This account accurately captures the speed, scope, and partisanship of the Court’s conservative counterrevolution. Yet it obscures a difficult truth: Progressive lawyers paved the road to these losses. Rulings such as those in Skrmetti and Mahmoud are the predictable consequences of liberal litigation strategies that invite a hostile Court to codify an agenda that the Court’s conservative majority was handpicked to establish.

The Supreme Court cannot act without cases. It cannot initiate litigation. To reshape doctrine in the ways the justices want, they depend on litigants to bring suits to them. Both of these cases represent unforced errors; liberal lawyers chose to fight for ideas the justices were explicitly appointed to oppose. Poorly chosen liberal challenges are a gift to a conservative majority eager to recast constitutional law.

Progressive lawyers need a strategic recalibration, something I argue in a forthcoming Cornell Law Review article. They need to stop reflexively turning to federal courts, and especially the Supreme Court. Avoiding high-risk, high-profile litigation in inhospitable forums does not mean abandoning constitutional advocacy. It means redirecting that advocacy toward the democratic arenas of constitutional politics, such as legislatures, ballot initiatives, grassroots organizing, and the broader public square. In these spaces, progressives can build popular support, blunt the impact of adverse rulings, and shape the constitutional culture that, over time, influences judicial doctrine itself.

It appears we might be at the end of the line of the much maligned "judicial activism". I only wonder what will come after it. I think we will finally see a focus on grassroots support. Hopefully this will be good for technology since all (obviously correct) positions like net neutrality (the subject of the Arstechnica article) are quite popular.