When it comes to the conservative takeover of the courts, the pivotal “oh shit” moment of realization for many liberals was Bush v. Gore, when a partisan block of justices decided the 2000 presidential election without counting the votes. That decision, which followed years of Supreme Court jurisprudence resistant to civil rights, civil liberties and democracy, should have been all any liberal needed to recognize how much can be lost when the court is captured by right-wing politicians in robes. These concerns helped fuel the founding of the American Constitution Society in 2001, a liberal legal organization modeled after the conservative Federalist Society.
ACS has always had a modest budget, but it has also been consistently funded by major liberal foundations like Open Society, as well as corporate donors, including major law firms and tech companies. Unfortunately, as is often the case with liberal attempts to ape the right, ACS succeeded in looking serious and raising money, but failed to become much of a political or ideological force. During the two decades of its existence, a right-wing judicial armageddon—which liberals always saw as lying in the future—has come to pass, capped by Trump’s appointment of three justices to the Supreme Court (he also confirmed circuit judges at a faster rate than any of his immediate predecessors).
ACS is not solely responsible for the conservative takeover of the courts, which was set in motion years before the organization’s founding. However, the group has made numerous missteps that are symptomatic of broader failures by high-level Democratic politicians and liberal legal thinkers.
The worst-case scenario on judges already happened
Like other liberal efforts, ACS seriously misjudged the political landscape and pursued ineffective strategies as it sought to combat the right’s legal dominance. Instead of working to match the right’s well-oiled machinery of producing new ideas and turning them into reality through the ruthless execution of politics, ACS has danced around well-worn liberal legal theories and overly focused on “pipeline building,” the process of helping its members build relationships and advance their careers. The Federalist Society “pipeline” from law school to prestigious clerkships and high-level legal jobs is the aspect for which the organization is perhaps best known. But for ACS, without a well-articulated vision to counter the right’s well-marketed ideologies of originalism and textualism, such advancement serves little greater purpose for a liberal legal movement. Similarly, failing to seriously address the political nature of filling the courts has led ACS to be a largely toothless organization for most of its existence.
ACS’s disappointing record reflects a complacent Democratic Party that witnessed Republicans attack “activist judges” and evangelize for dubious legal theories, but was unable to capitalize on a series of increasingly unhinged, highly politicized and outright anti-democratic Supreme Court decisions. Conservatives persuaded their base of the importance of judges and ruthlessly filled both the courts and the Justice Department with party loyalists. Democrats actively avoided prioritizing the courts, with White House Chief of Staff Rahm Emanuel reportedly telling a room full of activists “I don’t give a fuck about judges” in 2009, when Democrats had a Senate supermajority.
A better direction, finally
The silver lining to these historic screw-ups on the courts is that even the most established of establishment liberals are finally being forced to change course. In 2020, former Sen. Russ Feingold was named president of ACS, and has moved the organization in a positive direction. ACS is pursuing more explicitly political avenues for its goals, and has teamed with highly effective courts-focused groups like Demand Justice. Liberal voters are listing the courts as a higher priority issue, with a majority of Democrats supporting transformative ideas like court expansion and judicial term limits. The Biden White House has worked to confirm more progressive judges to the bench at a far faster pace than previous Democratic administrations, and a left-wing legal movement with serious and persuasive ideas is beginning to blossom.
The coming years will undoubtedly see more and more norm-shattering Supreme Court decisions, with the Texas abortion ruling merely an opening salvo. Democrats and liberal groups have sat on their hands for too long when it comes to the courts. A legal movement has emerged alongside the progressive political revolution of the last few years, with organizations focused on retaking the courts and reimagining the law. Liberals who hate the Supreme Court should recognize the potential of these groups, and show them their support.