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Back in November, Blue Tent published our evaluation of the American Constitution Society, a liberal nonprofit that was, until recently, the closest equivalent on the left to the conservative, courts-focused Federalist Society. Months of immersion into the research and history on liberal efforts to shape the federal courts led us to a tough conclusion: ACS, founded in 2001, had monumentally failed in its mission. Like many other liberal institutions, ACS has often demonstrated an allergy to more overt partisan and political tactics over its 20-year history. That cautious strategy has been paired with a reliance on corporate donors, itself a common correlation on the left that may be more than just a coincidence, but ACS was not solely funded by tech companies and law firms. Brand name progressive foundations like Open Society, Tides, Democracy Alliance and others have poured millions into ACS over the years, enabling an ineffectual approach to the courts on the left.
As I wrote back in November, ACS deserves its share of the blame for the conservative takeover of the federal courts that will likely reshape the country as we know it. But the organization itself is in many ways merely a symptom of a deeper rot in left-of-center politics. ACS was founded long after Republicans made it a priority to shift the courts and legal profession to the right, and with a limited budget and little buy-in from the Democratic Party, their failure could be chalked up to a combination of impotence and incompetence.
The Democratic establishment, however, did not merely blunder their way to a 6-3 conservative Supreme Court on the brink of overturning Roe v. Wade. Republican politicians, staffers and donors made a series of choices to prioritize and politicize the courts, and they succeeded. But liberal powerbrokers made a series of their own choices, as well, and they ultimately chose to let the judiciary slip away. Progressives shouldn’t let them forget it.
All the wrong decisions
In 1991, Republicans made a clear choice when they sought to replace Supreme Court Justice Thurgood Marshall with Clarence Thomas, who was only 43 years old and had spent most of his career as a political staffer. Democrats, led by Judiciary Chairman Sen. Joe Biden, made a clear choice of their own, handling the unqualified and extremely conservative Thomas with kid gloves, even after hearing nauseating testimony about numerous instances of workplace sexual harassment. In 2005, Republicans made another clear choice when they nominated John Roberts and Samuel Alito, both former foot soldiers in the conservative legal movement, to fill two seats on the court. Democrats again made a choice of their own, treating the hearings as business as usual and refusing to discipline members of their own caucus for voting to confirm both justices. In 2020, Republicans chose to rush the nomination of Amy Coney Barrett to fill the seat of Ruth Bader Ginsburg, and Democrats chose a deteriorating 87-year-old Diane Feinstein as their leader on the confirmation hearings.
A similar pattern emerged when Democrats were in the driver’s seat on the courts. In 2012, after Democrats retained their control of the White House and Senate, party leaders failed to go all out on convincing octogenarian Justice Ruth Bader Ginsberg to retire and choose her own replacement. In 2015, Democrats chose to nominate a centrist circuit court judge with seemingly “bipartisan” appeal to fill the seat of Justice Antonin Scalia, rather than seek a more historic nominee that could help turn the open seat into a campaign issue. This was despite the fact that Republicans pledged to block any and all nominees before the next year’s presidential election.
The current 6-3 conservative majority on the Supreme Court includes three nominees from President Donald Trump, who has never won the popular vote for the presidency, and two from George W. Bush, who won the popular vote in 2004 but likely didn’t actually win the electoral college in 2000. The sixth conservative, Thomas, has likely violated the ethical code that applies to lower federal judges on numerous occasions, and along with Justice Brett Kavanaugh, is one of two conservatives on the court accused of sexual misconduct. Despite this highly anti-democratic institution’s plan to effectively criminalize abortion in large swaths of the country, Democratic leaders have made the choice not to push forward on court expansion or impeachment hearings for Kavanaugh and Thomas.
Naturally, the party began fundraising off of the impending decision within hours, pledging to fight for reproductive rights “if only you could chip in a few dollars.”
Now or never, yet again
The choices cited above are only a small sampling of the Democratic Party’s willing participation in the erosion of the legal system. Smarter people than me can and have written countless articles, studies and books chronicling the party’s poor strategy for advancement and spineless defense against the conservative legal movement. Something that might go unsaid in those accounts, however, is that the Democratic donor class has allowed this takeover of the courts with little to no accountability for the organizations and politicians who stood by.
In the last few years, the left has produced a new wave of aggressive, politically savvy, and highly principled activists and leaders fighting to build a serious progressive legal movement. Groups like Demand Justice, Take Back the Court, and People’s Parity Project formed largely independent of (and often in opposition to) the Democratic establishment. Unfortunately, these efforts may be too little, too late, especially as progressives have struggled to organize a stronger, more coherent opposition to the party establishment. This is partially driven by fears of being seen as unserious spoilers engaged in “purity politics,” but also a certain naivete on the part of progressives that establishment Democrats will actually listen to voices on their left and work with them in good faith.
Donors, volunteers, staffers and other activists in progressive politics need to recognize the need for a strong, organized counterweight to other Democratic leaders and donors complicit in the coming fall of Roe. Progressive donors and activists should put their energy behind groups advocating for aggressive action on the courts, along with their few allies on Capitol Hill and at the grassroots level. Candidates and advocacy groups that refuse to see political reality — i.e., that abolishing the filibuster and expanding the Supreme Court are the bare minimum for maintaining American democracy — should conversely be starved of financing and personnel.
As we wrote in November, the Supreme Court’s decision to overturn Roe, paving the way for dozens of states across the country to criminalize abortion, is the armageddon Democratic leaders have been promising to prevent for decades, extracting votes and donations from rank and file members out of fear. It’s time for progressives to flip the script, and demand their party either put up or shut up.