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Amidst the ongoing political upheavals of President Joe Biden’s first 13 months in office, the administration has been quietly but methodically fulfilling one of the president’s less exciting campaign promises. In its first year, the administration confirmed 42 federal judges — more than any first year president since John F. Kennedy — including 12 circuit court judges, and a record number of current or former public defenders. One of those former public defenders elevated to the circuit was Kentanji Brown Jackson, who is now poised to become the first Black woman ever to serve on the Supreme Court.
This historic appointment is exciting, but is tempered by the reality that the replacement of liberal Justice Stephen Breyer with another liberal will mean little in the bigger picture: Republicans not only hold a commanding 6-3 majority on the court, but the two oldest members of the conservative block — Clarence Thomas and Samuel Alito — are each roughly a decade younger than Justice Anthony Kennedy was when he retired in 2018. Both are also the court’s two fiercest partisans, leaving little chance either would choose to leave the bench under a Democratic president.
As explained in a recent op-ed by leaders of three major progressive organizations, Jackson’s ascent to the highest court will not be some magical fix for an undemocratic legal system ruled by a Republican majority.
“Representation is important, but it is not enough when the institution that the first Black female justice is entering is broken,” write Tamara Brummer, Meagan Hatcher-Mays and Tristin Brown, of Demand Justice, Indivisible, and People’s Parity Project, respectively. “If we are to see the fullness of this historic moment, we must fight for a Supreme Court that works for us all. The presence of a Black female justice cannot fix the structural issues facing our court. Only Supreme Court expansion can do that.”
The only way out is through
The op-ed touches on an essential truth many left of center must grapple with when it comes to the courts: There is no “moderate” solution to fixing our broken judiciary. To overcome the right’s anti-democratic takeover of the country via the courts, progressives must embrace a more ambitious agenda, and that starts with expanding the Supreme Court. An unthinkable idea a few years ago, court expansion has quickly gained serious buy-in on the left thanks to the advocacy of groups like Demand Justice.
As Colin Diersing, the group’s communications director explained, Demand Justice has taken a multi-pronged strategy to advance court expansion, organizing constituent meetings for lawmakers and recruiting volunteers from more than two-dozen states to lobby members of congress on Capitol Hill last fall.
“Many of the members of Congress who have recently co-sponsored the bill — such as Del. Eleanor Holmes Norton, Rep. Bobby Rush, Rep. Dina Titus, and Rep. Emanuel Cleaver—announced their decision to do so during or right after hosting meetings with our volunteers,” said Diersing.
Critics of court expansion and other aggressive tactics on the courts argue that the left would be fueling an arms race of politicization of the courts, wherein Republicans would eventually retake power and expand the courts themselves. But the problem with this line of thinking is that de-escalation is simply not on the table. Most ideas for reforming the courts focused on depoliticization (such as instituting term limits or altering the Supreme Court selection process) would necessitate amending the Constitution — a near-impossible task for the foreseeable future. Court expansion, on the other hand, would not only solve the current partisan power imbalance in the judiciary but prevent further democratic erosion that could make it impossible for future reforms.
The only hope for fixing the judiciary is for progressives to pursue a zealous campaign to retake the courts, and that will require a movement.
The need for more funding
As we’ve written about in the past, the right-wing takeover of the courts is also a story of liberal failure. Part of that failure was an inability to recognize key differences between the right and left when it comes to building power; groups that attempted to ape the Federalist Society’s top-down, corporate money-backed organization have never gained serious traction. Countering that effort on the left, according to People’s Parity Project Executive Director Molly Coleman, means fighting money power with people power, and people power means fighting for what regular people actually need.
“For two generations, the conservative and pro-corporate legal movements have been the beneficiary of massive investments, giving them the resources to shape and define the landscape in which we are now operating,” said Coleman. “The progressive legal movement, in our attempt to build a legal system that works for people, not corporate profits and reactionary, conservative interests, now requires a comparable level of investment.”
Like any other issue on the progressive agenda, fixing the courts will start and end with constituents at the grassroots, whose voices and votes are one of the few checks the left has against right-wing money and power. Groups like Demand Justice and PPP, both of which Blue Tent recommends to donors, are two of only a few organizations explicitly focused on building grassroots energy behind issues connected to the courts and the law. For progressives focused on winning back the courts, both groups should be a prime target for giving.
More funding for PPP, Coleman told Blue Tent, would allow the organization to expand its staff and build stronger local organizing bases, including among law students who will one day be shaping the courts and legal profession. Likewise, support for Demand Justice would help fuel their efforts to organize constituents around court expansion and judicial nominees, along with the group’s other important work (Demand Justice has also announced a $1 million campaign in support of Jackson’s nomination to the Supreme Court).
“If we are going to unrig the judiciary at both the federal level and the state level,” Coleman explained, “we need to invest in a broad-based organizing movement that is driven by the people on the ground and supported by organizational staff who can ensure that the organizers’ vision for a better legal system comes to life.”
Over the next few months, the odds are good that we will see the first Black woman sworn onto the Supreme Court. How progressives choose to invest their time and money over the next few years, however, may be what determines whether she spends her tenure shaping the law or merely writing dissents.