US Supreme Court puts the last nail in the coffin of legislative incrementalism

i have never been a big fan of progressive policy incrementalism – i.e., the advocacy approach, unfortunately favored by the social work profession, of gradually making small policy changes, usually through legislative action, that eventually add up to meaningful, if not structural and socially transformative, change. As far as I can tell from reading American history, incrementalism only achieves good things when it already enjoys a structural base, a solid foundation, to build on. So, to consider what is certainly the most salient example, first we had to get the Social Security Act in place, then we could work to build it out incrementally over time.

But the Social Security Act itself – the foundation of the US welfare state, such as it evolved over the last eight decades – was not the result of step-by-step, brick-by-brick incrementalism. Rather it was the result of a massive breakdown in the economic order, resulting persistent and escalating social unrest, and recognition by a significant portion of the political elite, led by President Roosevelt, that the alternative to major reform was revolution – that is, overthrow of the capitalist/bourgeois-democratic system itself. Without the profound crisis of the Great Depression, and the long shadow of the Bolshevik Revolution and the subsequent formation of the USSR barely a decade earlier, providing incentive, it’s highly unlikely that anything like the SSA would ever have come about.

Successful incremental advocacy requires, moreover, a large expanse of legislative common ground, a left-right/liberal-conservative consensus on sustaining the policy achievements of the past. That consensus began eroding with the election of Ronald Reagan, and what remains of it appears to be melting faster than the polar icecaps. Now we can expect, unless all the pollsters and pundits are very, very wrong, that Republicans (many of them unabashed proto-fascists and Trumpist 2020 election “Big Lie” promoters) will control at least the House of Representatives in the next Congress, dashing the last sliver of hope that dominant Democrats could somehow figure out how to bypass the legislative killing field of the US Senate’s filibuster rule to institute rights-protecting and social welfare-advancing policies.

But here’s the thing: Even if the feckless and dispirited Dems did manage to control the legislative policy levers, the hard-right wing can now count on an ultra-right Supreme Court – stacked with justices appointed by presidents who lost the popular vote in their elections via the starkly undemocratic Electoral College – to overturn policies that the nation’s oligarchic, pro-corporate minority does not like. In fact SCOTUS appears to be looking for opportunities to reverse the progressive gains of decades past. Dobbs v. Jackson ending abortion rights, along with West Virginia v. EPA, curtailing the Environmental Protection Agency’s capacity to regulate the greenhouse gases fueling the climate crisis, was just the beginning. Next up is almost certainly a decision that will shut down what remains of affirmative action, followed by one that will uphold red states’ egregious assaults on voting rights; in this regard, keep an eye on Moore v. Harper, which could result in granting state legislatures the right to disregard the results of popular votes they don’t favor, via the bizarre “Independent State Legislature” theory.

Incremental change advocacy is simply no match for radical judicial activism. A revanchist Supreme Court is the final nail in the coffin of policy incrementalism. The question facing our defensive profession is an old one – What is to be done?

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