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Democrats are stuck in a contradiction on the Supreme Court, and they need to be pulled out of it. Following the leak of a draft opinion to overturn Roe v. Wade, party leaders like President Joe Biden, Speaker Nancy Pelosi, and Senate Majority Leader Chuck Schumer all cast the potential decision as a radical, unprecedented, and anti-democratic attack on peoples’ basic rights. The court’s conservative majority is shredding the constitution by decree, and doing so entirely free from accountability. Proposals by Democrats to codify abortion rights into legislation, far-fetched as they may be given the current political landscape, are a reasonable response. But what is to be done about that unaccountable, radical majority on the Supreme Court, which is all but guaranteed to keep power for another decade or longer?
As we’ve written before, expanding the Supreme Court can no longer be viewed as some pie-in-the-sky academic exercise. Rather, it is the only reasonable short-term solution to the judicial crisis the country is facing. It’s by no means ideal, but waiting for the balance of power on the court to change is a fool’s errand, as are half-hearted “reforms” such as term limits or a judicial code of ethics, both of which would likely be circumvented by Republicans in the decades it would take for either to be meaningfully implemented.
Still, many progressives remain opposed to court expansion. While the list of Democratic officeholders signing on has steadily grown in the last two years, with politicians like Sen. Elizabeth Warren and Rep. Adam Schiff voicing their support in recent months, legislation to expand the court remains effectively dead in both the House and Senate. Sen. Bernie Sanders has consistently opposed court expansion, while none of the leading Democratic senate contenders in 2022 have voiced even mild support for the idea.
With many Democratic leaders remaining tepid on reigning in the court even after the leaked draft overturning Roe, progressive donors need to embrace a strategy to widen the appeal of court expansion. They also need to be prepared to fight against opposition not only from Republicans, but from many major leaders and donors in their own party. What might such a strategy look like? And what are the best giving options for donors who want to help move the idea of court expansion into the mainstream of Democratic politics?
Closing the gaps on salience and knowledge
One of the chief challenges in building support for court expansion is that there isn’t much obvious political reward for elected officials. While recent polling found that 84% of likely voters believe Supreme Court decisions “have an impact on [their] everyday life as a citizen” and the court is facing its lowest approval ratings on record, issues like inflation and health care currently rank as much higher priorities for voters in 2022. The popularity of court expansion in and of itself is also an open question; while past polls showed somewhat limited support for court expansion, a more recent poll found that 52 percent of registered voters agree that expanding the court would strengthen democracy.
But as advocacy group Take Back the Court has pointed out, the challenge isn’t just a lack of salience to voters, but also a lack of knowledge. An April memo from Take Back the Court Action Fund pointed to recent polling asking voters basic questions about the court. When respondents were asked which party appointed a majority of current Supreme Court justices, only a meager 40 percent of Democrats said they were “confident” that they were nominated by Republicans. To the contrary, one-quarter of all Americans (including 16 percent of Democrats) believe that a majority of the court was actually appointed by Democrats. When it comes to recent rulings, the memo continues: “...only 25 percent of Americans know the Court has reduced voting rights of racial and ethnic minorities over the past 15 years — and more than a third (36 percent) incorrectly think the Court has increased voting rights. By a two-to-one margin (41-20) more young people incorrectly think the Court has increased voting rights.”
In other words, liberals have failed to get a message out to voters that the nation’s high court has become dominated by unelected Republican politicians in robes, and that those Republicans are attacking some of the country’s most deeply cherished values. Groups like Take Back the Court, Demand Justice, and People’s Parity Project are taking on that mission now, along with a handful of progressive politicians and a smattering of lefty anti-establishment media, like the popular “5-4” podcast. With the leak of the draft opinion to overturn Roe last month, nearly a dozen state and local abortion rights groups also joined to call for expanding the court.
New polling from Take Back the Court Action released Wednesday found that 60 percent of 2020 Biden voters support expanding the Supreme Court. This number jumps as high as 73 percent when pitched to voters as a way to decrease the power of individual justices, and as high as 84 percent when voters learn that the court has been in Republican control for more than 50 years. Based on further polling summarized by the group, building a wide base of support for court expansion will mean continuing to educate voters on the court’s long-term partisan breakdown, while framing the Supreme Court as anti-democratic, unaccountable, highly politicized, and a threat to deeply held American values like fairness, opportunity, democracy, and equality.
Where to give
Here at Blue Tent, we’re big supporters of national groups that are out there pushing for court expansion through lobbying and national campaigns, which can help push messages to voters about the court’s partisan makeup and disastrous recent rulings. Take Back the Court is asking donors for a $13 donation to support expanding the court to 13 justices, and along with organizations like the aforementioned Demand Justice and People’s Parity Project, we definitely encourage readers to pitch in.
Supporting state and local organizations, however, may be just as important to getting more voters and politicians to prioritize the court. Many of these groups have much deeper roots and are often better positioned to translate the importance of seemingly far away issues, like the courts, to a wider range of voters. State and local organizations can also sometimes make a stronger case to elected officials, as they come closer to representing a real constituency in their state or district, and can more aptly connect the dots between the court and more concrete issues like abortion access.
“These are the people on the ground closest to the fight,” TBTC Action Fund executive director Sarah Lipton-Lubet told Blue Tent, “and they know first-hand that the fight to protect abortion rights must include the fight to expand the Supreme Court.”
(A list of state and local abortion groups that have come out in support of court expansion can be found here.)
Fighting attacks from within
Because of the current political landscape, donors interested in court expansion won’t have many good options when it comes to electoral giving. Elected Democrats who have joined in for court expansion by co-sponsoring Rep. Mondaire Jones and Sen. Ed Markey’s Judiciary Act primarily hail from deep blue districts and states, while those running for open seats have either declined to share their views on expanding the court or, like John Fetterman in Pennsylvania, expressed their opposition.
One co-sponsor of the Judiciary Act, however, is a top primary target of conservative Democrats: Rep. Rashida Tlaib. The Michigan congresswoman is facing a primary challenge from Detroit City Clerk Janice Winfrey, whose campaign is receiving a $1 million boost from a pro-Israel super PAC. Tlaib, who is of Palestinian descent, is one of the House’s most progressive members and an outspoken critic of Israel’s occupation of Palestine.
Liberals are often (rightly) criticized for a circular firing squad mentality, though the stereotypical culprits are puritanical leftists obsessing over microaggressions. In Tlaib’s case, a popular and progressive congresswoman who happens to be one of the few Democrats to see the reality of the Supreme Court is being targeted by her own party. The attacks against Tlaib are a nonsensical use of money during a contested midterms cycle, one where Democrats have a slim chance to keep their majorities. Donors with the money to spare should chip in to Tlaib, and help keep an advocate for court expansion in office.