Over this past summer, as the Supreme Court concluded its first term under the newly minted conservative supermajority, a handful of journalists and lawyers took to the press to condescend to fearful progressives.
Citing the dearth of blockbuster 5-4 or 6-3 conservative rulings in the most recent term, University of Chicago law professor Tom Ginsburg wrote that “the justices seem to be refuting the idea that they are partisan actors in an ostensibly nonpartisan institution.”
The omniscient voice of The Economist theorized that a mere three cases from the recent term had different outcomes thanks to Justice Amy Coney Barrett filling Ruth Bader Ginsburg’s former seat. The court’s latest rulings showed that the justices’ political alliances “seem more complex, and less extreme in their results, than many expected.”
“But with the notable exception of a disturbingly partisan voting rights decision,” hedged ACLU legal director David Cole in The New York Review of Books, “the doomsayers were wrong.”
Two weeks after Cole published his piece, the Supreme Court issued an unsigned, one-paragraph opinion allowing Texas to effectively ban most abortions (a district judge temporarily halted the law in a separate case—only to have a federal appeals court reinstate it this week.) The decision was the court’s most explosive in recent months, but far from its only partisan or conservative ruling. This summer the high court gutted another key provision of the Voting Rights Act, expanded exemptions for anti-gay religious service groups, and knocked down transparency requirements for wealthy political donors. On the docket this term, which began October 4th, are potentially landmark cases on guns, abortion and religion.
As Blue Tent explains in our landscape review of progressive efforts to win power in the federal courts, conservatives came to dominate the judiciary through a concerted, well-funded effort on all political fronts. While the Federalist Society is given much of the credit for these results, the organization is just one player in an expansive campaign behind the right’s legal revolution. Ideas are important, but getting people appointed to actually advance those ideas requires nuts-and-bolts political work: organizing constituents, lobbying policymakers, running ads and raising enough money to fund a small army.
For decades, attempts to counter the right’s judicial influence machine mostly came up short, as lawmakers, legal scholars and funders either resisted politicizing the courts or ignored the situation altogether. But as Blue Tent describes in our latest organizational brief, progressives are finally taking judges more seriously. Demand Justice, founded by former political staffers Brian Fallon and Christopher Kang, is the leading organization pushing the envelope on the federal courts. Operating both a 501(c)(3) and (c)(4), Demand Justice has funneled new cash into advocacy and political work aimed at convincing Democrats to diversify the judiciary, stiffen their spines on progressive legal principles and expand the Supreme Court.
While Demand Justice is still finding its footing in terms of both governance and financials, the organization has shown immense promise. Demand Justice combines pragmatism with strong progressive ideals, pushing for more ambitious structural changes to the courts in an effective manner. Our brief lays out the case for strong donor support of this group.
But Demand Justice and its allies are facing an uphill battle, and not just from conservative opponents. Many Democratic lawmakers and progressive legal organizations are still fearful of the courts becoming politicized, ignoring the reality that the bridges of partisanship and ideology were crossed long ago. Likewise, despite the outrage caused by the recent Texas abortion ruling, the Supreme Court is unlikely to meaningfully change under Biden. The President and other moderate Democrats have expressed their opposition to court expansion for the time being, while the justice most likely to retire under Biden is Stephen Breyer, a liberal who is a decade older than the court’s eldest conservative, Clarence Thomas.
Progressives need to get their dollars behind organizations like Demand Justice that have shown a willingness to push their progressive principles while also engaging in bare-knuckle political battles. Democrats can both move the ball forward on short-term, winnable goals, like lower-level court appointments, and invest in the long-term work of structural changes to the judiciary.
For years, liberals sat on their hands as the right effectively rewrote the Constitution. Inaction now is simply inexcusable.