The party has largely avoided talking about the radical nature of the Roberts Court.
For all the heists and scams of the Trump era, perhaps the greatest theft occurred before he even took office. And Mitch McConnell was the perpetrator. “They stole a Supreme Court seat, and they’ve installed union-buster Neil Gorsuch on the bench. And now their investment is paying off,” as Senator Elizabeth Warren said recently.
Indeed it is. So far this year the Court has delivered blow after to blow to workers: from Janus v. AFSCME, which will crush the ability of workers to organize, to Epic Systems Corp. v. Lewis, which will make it far more difficult for workers to use the legal system to remedy abuses. On Monday, the Court upheld racist gerrymanders and gutted antitrust enforcement. Tuesday, the Court upheld Trump’s Muslim ban and blocked a California law that “crisis pregnancy centers” had to provide information about abortions. As Democratic contenders for 2020 are staking out positions like a federal job guarantee and Medicare for All, the threat of a Supreme Court that could reverse progressive legislative accomplishments looms large.
David Faris, a professor of politics at Roosevelt University who wrote a book arguing that progressives need to fight back against Republican procedural extremism, said that, while the constitutional basis for Medicare for All is sound, another right-wing justice on the Court could “open up the possibility of overturning crucial decisions from the late ’30s, decisions which finally upheld New Deal reforms. If the constitutional basis of the Social Security Act is overturned, for instance, then Medicare for All becomes impossible too. We’re not that far away from this scenario,” he said. “Federalist Society zealots have openly wanted to bring back the Lochner era for decades.” More broadly, Faris said he fears any progressive change will have to endure years of “both real and frivolous court challenges.”
The specter of neo-Lochnerism (a term for the era in which conservative justices used specious constitutional justifications) is not absurd. John Roberts successfully gutted the Medicaid-expansion provisions of the Affordable Care Act with the aid of two liberal justices. Though he did not strike down the full law, the way he constructed his decision left the gun loaded for future decisions to do just that to other progressive legislation.
In light of this conservative judicial activism, some Democrats want to talk about the realities of a politicized high court. “Republicans and their billionaire buddies have pushed through judges like Justice Gorsuch to rig the system against workers. They can use a stolen Supreme Court seat to try to break the backs of unions and deliver punch after punch to working people—but we will fight back,” Elizabeth Warren told me.
Senator Kirsten Gillibrand, who has been leading the charge for policies like a job guarantee and has co-sponsored legislation to implement Medicare for All and expand union bargaining rights, told me something similar. “Elections have consequences, and those consequences have been severe on the future of our judicial system under President Trump, who is remaking the federal bench to be more hostile towards workers’ rights and civil rights for generations to come.”
These attacks are notable because, for the past decade at least, Democratic voters have largely viewed the Court as a centrist, apolitical institution. In my research, I’ve found that Democratic voters are more likely than Republicans to approve of the Court. In 2016, according to the Cooperative Congressional Election Studies (CCES) survey, 56 percent of Democrats approved of the Supreme Court (30 percent disapproved and the rest weren’t sure), compared with 30 percent of Republicans (60 percent disapproved and the rest weren’t sure)—while, according to my analysis of the American National Election Studies data, 43 percent of Republicans believe that controversial votes or opinions from judicial nominees should be considered “a great deal,” compared with 33 percent of Democrats. While 67 percent of Democrats view themselves as more liberal than the Court, 82 percent of Republicans see themselves as more conservative, according to CCES. Perhaps more disturbingly, 28 percent of independents see themselves as more liberal than the Court and 47 percent see themselves as more conservative.
This may be due to a fundamental misunderstanding of how conservative, and radical, the Court has become. Faris believes more Democrats should be talking like Warren and Gillibrand. “It’s so important to use the Court as a rallying tactic and a way of helping people understand the legal bases of injustice, particularly as they relate to things like economic inequality and racial and gender injustice,” he said.
But most Democrats haven’t embraced this approach yet. My think tank, Data for Progress, has been studying messaging on the Supreme Court from elected Democrats, on social media and other channels. We found that Democratic senators tweet less frequently about the Supreme Court than Republicans. “In a political climate where Democrats have been relying on the integrity of the Court to serve as a check against a malicious executive branch and an ineffective legislative branch, Democrats seem to avoid discussion of the courts,” said Data for Progress senior adviser Hanna Haddad, who assembled a data set of every tweet from every senator from January 2017 through June 2018.
Jon Green, a co-founder of Data for Progress, studied tens of thousands of newsletters sent by members of Congress since mid-2009, which were compiled by political scientist Lindsey Cormack. “Democrats are less likely to mention the Supreme Court than Republicans. And when they do mention the Court, it is more often to celebrate liberal decisions than it is to alert their subscribers when the Court has sided with conservatives,” Green said. “If this pattern is consistent across other channels of communication between the party and its voters, it could contribute to a misperception of the Court’s ideological alignment among the Democratic base.”
When Trump’s Court nominees have come before the Senate Judiciary Committee for confirmation, Democrats generally do not talk about the effect of right-wing justices on everyday economic issues. (Gorsuch’s confirmation hearings were an exception, however.) But Brian Fallon, a former Hillary Clinton spokesman who is executive director of Demand Justice, is working to change that. “Progressives need to understand: Neil Gorsuch is further right even than Scalia in his zeal to restrict the government’s ability to regulate commerce and protect workers. Gorsuch is on a mission to rehabilitate a conservative brand of judicial activism that was once used to invalidate major parts of the New Deal, but has since been relegated to the dustbin of history,” he said.
Demand Justice is prepared to run ads against Democratic senators who are enabling Trumpist judges, Fallon said. “Understanding and confronting this threat is an essential project for progressive policy-makers and activists, or else all our ambitions to secure a $15 minimum wage, Medicare for All and a jobs guarantee will be doomed from the start.”
Demand Justice is just the beginning of an effort to build a more serious infrastructure to push Democrats to hold the line on judicial nominees—much like conservatives already succeed at doing. Fallon provided The Nation with data on 39 votes for cloture on Trump judges, which showed that Republicans defected from the party line just twice, and both votes were from Senator John Kennedy, a Republican from Louisiana. On the other hand, many safe Democrats, like Patrick Leahy (who has voted for more than 60 percent of Trump’s judges) have voted for a majority of Trump judges.
Senator Mazie Hirono has voted in favor of fewer Trump judges than any other Democrat. When I asked why, she said that “Senate Republicans are doing everything they can to help Donald Trump pack the courts with ideologues who will serve as rubber stamps for his policies.” Hirono has been the sole vote against cloture for six Trump judges, and Demand Justice recently released an ad campaign praising her for voting against more Trump judges than any other Democrat. Warren is the only other Senator to be a sole “no” vote on a Trump judge.
While many Democratic voters may not fully realize how radical the Supreme Court has become, they are beginning to identify a certain dynamic. According to survey data from Demand Justice provided exclusively to The Nation, 68 percent of Democratic voters believe that the Court is more favorable to business than workers. (Only 9 percent believe the reverse.) In addition, 51 percent think the Court is more favorable to law enforcement than to defendants, where only 18 percent believe the opposite is true. The Demand Justice survey includes nearly 900 likely Democratic primary voters in 11 states where there is a Senate race this year. Eighty-one percent of Democratic primary voters believe it is very important or somewhat important for Senate Democrats to oppose most or all of Trump’s judicial nominees. Seventy-two percent of Democratic primary voters surveyed said they would be less likely to support a US Senate candidate who supported the majority of Trump’s nominees.
So there’s room for Democrats to take a more aggressive tone when talking about the Supreme Court and judicial nominations—and it’s badly needed. To the extent that the Roberts Court faces political pressure, it comes largely from the right, not the left. Roberts is viewed as a mostly apolitical actor, calling balls and strikes, rather than as a partisan warrior. Democrats need to start providing real talk to the base about what the stakes are. They have, as a whole, been unusually quiet about what may end up being Trump’s longest-lasting achievement.