One of the most consequential political developments of recent decades has been the politicization and capture of the judiciary by the far right, from state judgeships all the way to the U.S. Supreme Court. While Democrats have made inroads in recent years, they still face an uphill battle when it comes to wrestling back control of the courts. Below, we explain why the judiciary is so important for progressive goals, the best ways for donors to support taking back the courts, and tips for getting started in your giving.

Why This Work is Important 

At all levels, the judiciary wields immense power, issuing rulings on nearly every major issue and important area of American life. This power can be especially great in times of political gridlock and otherwise divided government. State and federal courts can effectively veto even massively popular public policies, and if they rule a law to be unconstitutional, the only ways to overcome their ruling are via appeal to a higher court or amending the constitution. Courts also have huge influence over the rules of our democracy, deciding cases involving voting rights and redistricting. In addition, judges are also highly influential in shaping the legal profession; clerking for federal judges is a major credential for lawyers throughout their careers, and is considered a prerequisite for employment in many positions at the highest echelons of law. 

Where Donors Should Give  

• Organizations focused on court reform. With the right’s takeover of both the Supreme Court and many lower courts in ways that could be irreversible for decades under the current appointment system, many progressive activists have begun advocating for structural changes to the courts themselves. The most well-known idea is to add several new seats to the Supreme Court, but some court reform organizations are also demanding an expansion of the lower courts, the implementation of term limits and a stricter code of ethics for the Supreme Court in particular. Groups engaged in this sort of work include Take Back the Court, the Brennan Center for Justice and Demand Justice, the latter of which is also highly engaged in the other strategies we’ll discuss below.

• Organizations lobbying on judicial nominations. The most straightforward way to influence ongoing fights over the federal courts is for progressive activists and organizations to directly advocate for or against certain judicial nominees. This work includes meeting with senators and their staff members, activating constituents of decisive senators, and running media campaigns for or against particular nominees. The most experienced and active organizations doing this work now include civil rights and legal groups, such as the NAACP Legal Defense Fund, Leadership Conference on Civil and Human Rights and the American Civil Liberties Union.

• State supreme court races. Like the federal courts, state governments have become increasingly more powerful during recent decades due to years of gridlock and inaction by Congress. This power shift has elevated the importance of state courts, and especially state supreme courts. In nearly half the states, judges on these courts are elected directly by voters. This means that unlike with the federal courts, people have a direct way to support progressive jurisprudence and hold bad actors accountable. Donors can give directly to candidates running to flip or hold state supreme court majorities, give to support state parties where the court is up for grabs, and donate to electoral groups that are engaged in state supreme court races. Check Blue Tent’s website during election season for our recommendations on which races to support and how.

• Organizations dedicated to building the judicial pipeline and advancing progressive legal ideas. In order to staff the judiciary with progressives, senators will require a reliable pool of well-qualified lawyers with strong commitments to progressive ideals, as well as the intellectual networks to develop a coherent legal movement for the left. The right has built a well-oiled machine in this regard, primarily through the Federalist Society, which provides Republican presidents and senators with a steady stream of highly credentialed, right-wing thinkers ready to take the bench. Progressives need to invest in similar networks and intellectual projects, which will help cultivate left-leaning young lawyers while developing, proliferating and legitimizing progressive legal theories. People’s Parity Project organizes young progressive lawyers and builds communities and networks for them, as does Demand Justice, which also works to help progressives interested in becoming judges. The American Constitution Society also works in this area with local chapters of students and lawyers. 

For Donors Getting Started

• Learn more about the courts and how to take them back. Donors looking to better understand the federal nominating system can read “Democrats Need to Nominate Better Judges” by Emma Steiner and Matt Bruenig for People’s Policy Project, while those interested in state courts should read the Center for Public Integrity’s investigative article on how conservatives came to dominate these institutions. 

• Make sure you understand the different types of nonprofits and political groups, and what that means for your giving. The examples we cited above include different types of organizations, from standard 501(c)(3)s to the more politically minded (c)(4)s, as well as the potential for PACs, 527s, and political campaigns. Donors should read up on the different limits and tax rules when it comes to giving to these groups, especially if you’re looking to give through a foundation. 

• Think about your giving in the bigger picture. No matter what issue you care about, you need to be concerned with who controls the courts — since these bodies can play a hugely important role in either thwarting or accelerating progress in many areas. All progressive donors should consider giving annually to judicially focused work, even if only at a modest level. This area is also an excellent choice for major investments, since most of the key groups working on the courts remained underfunded.