The Supreme Court is only as powerful as we allow it to be, something well expressed in the apocryphal line attributed to Andrew Jackson: that Chief Justice John Marshall “has made his decision; now let him enforce it.”
The court’s power has been challenged twice in more recent history, and in both cases it lost: First, when FDR’s court-packing plan forced it to stop repealing the New Deal, and again when widespread resistance to desegregation succeeded in slowing school integration in the South. Long before either of these cases, Abraham Lincoln actively fought the Supreme Court’s Dred Scott v. Sandford decision, briefly increasing the number of justices to secure emancipation.
With the court now on the verge of returning to the dark days of the Lochner era — a time when conservatives used phony constitutional doctrines like the “freedom of contract” to strike down commonsense New Deal–era laws on issues like child labor — the time has come for a new effort to constrain the court and limit its power. The appointment of Brett Kavanaugh has pushed the court into uncharted territory: There has never been a justice who was confirmed with such low favorability numbers, nor one whose confirmation was defined by such intense partisanship.
Progressives should be concerned about a far-right Supreme Court majority, but we cannot despair — we have options. Because of its institutional weakness, the court is constrained by public opinion and by elite opinion. Now is the time for activist groups to assemble a constant war footing toward the court.
That in itself would be a major change, because for a long time the court was largely seen as an honest broker among Democrats. Research from Data for Progress suggests one reason why: Democrats tend to talk about the court in positive terms and mostly discuss the court when it issues decisions that liberals like, such as on the issue of marriage equality. In contrast, Republicans have historically rallied their base by highlighting the court’s abortion jurisprudence, which they despise, while saying very little about the consistently pro-corporate decisions that form the core of conservative judicial activism.
In the Trump era, this warm and fuzzy Democratic view of the court shifted dramatically. In 2016, 70% of Republicans said Supreme Court appointments were “very” important to their vote, compared with 62% of Democrats. As of late September, 81% of Democrats said Supreme Court appointments are “very important,” compared with 72% of Republicans.
For the first time in a decade, Americans are also more likely to see the Supreme Court as “too conservative” rather than “too liberal” — a welcome development, but a stunning one given that the court has been a conservative force the entire time. Many Americans think of same-sex marriage as the defining ruling of the past decade, but they overlook the court’s gutting of the Medicaid expansion, ending of voluntary desegregation programs, enabling of right-wing voter suppression, and crushing of state-level public financing laws.
The shift in public opinion is good news, and it alone will act as a disincentive for the further right-wing overreach of the court. But that’s just a starting point for the progressive movement; there is much more work to be done.
Groups like Demand Justice should produce advertisements designed to reduce support for specific decisions and raise awareness of how the court damages progressive constituencies. The goal should be explicit: Pull down the favorable numbers for Justices Roberts, Alito, Thomas, Gorsuch, and the court to negative, and make sure Brett Kavanaugh’s public support never rises from its current low. The Be a Hero campaign to fund a challenger to Susan Collins indicates the sort of tactical innovation progressives should pursue on this. And the protests of grassroots groups like the Center for Popular Democracy (where a survivor of sexual assault confronted Jeff Flake in an elevator) can further influence perceptions.
Getting cameras in the courtroom would demystify its proceedings and reveal them as little more than law school dorm-room bull sessions — Congress can, and should, pass a law demanding it. Activists should disrupt the events of Justices Clarence Thomas and Neil Gorsuch, who disgrace the institution with their corruption. (Thomas’s wife is a Republican lobbyist, but he does not recuse himself from cases she is involved in.)
These are all minor but important tactical escalations, but larger escalations should be on the table to prevent a neo-Lochnerite court from dismantling progressive policies. Central to all of this is understanding that Kavanaugh and company are politicians, not judges, and their goal is to wage ideological warfare, not interpret the law. That means they must be seen as political appointees who work under the threat of impeachment — a threat that should loom over Thomas and Kavanaugh in particular.
Progressives should also design laws to be more difficult for the court to strike down. Complicated expansions of the welfare state that require the participation of state and federal governments and the private sector will always be more vulnerable to court intervention than straightforward redistributions of wealth. And simpler government interventions will both contain fewer vulnerabilities for exploit by conservative legal activists and be more easily understood among the general public, who will recognize judicial misconduct if they’re overturned.
This also means front-loading the benefits of new laws — in 2012, the benefits of Obamacare hadn’t kicked in, and striking it down would have seemed less provocative. But by 2015, when when the most significant challenge made its way to the court, the nine justices would have been affirmatively taking things away from millions of people, and that made it harder to gut the law. It’s important to note that at the end of the day there is an extent to which this won’t matter as long as there is a five–four radical conservative court.
Last, to restore some small-d democratic semblance to the court, Democrats should consider adding two or more new justices beyond the existing nine, two of whom have been chosen by a president who lost the popular vote and confirmed by senators representing a minority of the American public.
A Democratic president should make sure Chief Justice John Roberts is aware of these goals: He must understand that if he strikes down a progressive law, he will be crushed. All of this will require a significant investment of political capital from progressives, who might be wise to put these ideas on the table and dare Roberts to overstep (as FDR did).
There are signs that Roberts is aware of these risks: Many court watchers believe the reason he sided with the court’s four liberals to preserve the Affordable Care Act was his understanding that, were he to overplay his hand, the court would quickly lose its legitimacy.
But just because the court has occasionally pulled back when its authority was most seriously threatened — from the Civil War to the New Deal and Roberts’ Obamacare compromise — does not guarantee it will do so again with its new ultra-conservative majority. Either way, the biggest reason to worry about an illegitimate, out-of-control court is that Democrats may not be prepared to fight it.
Sean McElwee is a cofounder of Data for Progress. He tweets at @SeanMcElwee.