The Right Spent 50 Years Rigging The Courts. It's Not Too Late To Fight Back.
Yeah, let's expand those courts, baby!
Let's take a quick trip back to 2019, when Meagan Hatcher-Mays, director of democracy policy for the Indivisible Project, wrote the following prescient words in the Rewire article, "It’s Time for Democrats to Get Serious About Reforming the Supreme Court":
Here’s a nightmare scenario for you. In 2020, Democrats could win back the White House, the Senate, and maintain their majority in the House of Representatives. They could pass a slate of dream progressive policies like “Medicare for All” and the Green New Deal. And it won’t matter—because the current U.S. Supreme Court, stacked with conservative ideologues, will overturn all of it.
Hatcher-Mays doesn't actually own a crystal ball. She just has a pair of eyes, as she told me during our recent conversation about the jacked-up MAGA Supreme Court. (You can watch it below.) Democrats weren't even as ambitious as she imagined with their trifecta — thanks, Joe Manchin and Kyrsten Sinema! — but the Supreme Court nonetheless tossed out President Joe Biden's student loan forgiveness plan.
"This is actually pretty well laid out by the Right," Hatcher-Mays said. "They weren't being very secretive about their plans for what they wanted to do, not just with the Supreme Court but with the lower courts. You could probably go all the way to Brown v. Board . The Right looked at decisions like that and Roe v. Wade and any decision that expanded fundamental constitutional rights to marginalized groups and thought ‘Oh, no, we can't have that! Because we want to prevent marginalized people from having expansive constitutional rights.’
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As Hatcher-Mays points out, the Right spent decades building its preferred, reactionary court. In the 1980s, conservatives created the Federalist Society, which she's described as a "shadowy conservative group" that "grooms law students to become hardliner anti-choice judges who oppose reproductive rights and the social safety net, but support wholesale deregulation and unfettered personhood rights for corporations."
"They invented the concept of 'originalism,'" she added, with appropriately mocking air quotes. "That's not a real thing. They just invented it. It's the same as me. It's not like Thomas Jefferson invented originalism." (Popularized by the late Justice Antonin Scalia, "originalism" itself dates back to the 1970s,as a clear response to the "rights revolution.")
According to Hatcher-Mays, the Right focused on capturing the courts with ideologues "who would restrict constitutional rights back to their belief of who deserved them, which is white, wealthy men, mostly."
These judges are just as — if not more — radical than far-right Republican politicians, but they don't have to worry about their next election. They serve for life, and they benefit from a mistaken public belief that they are "neutral judges who 'follow the law,' or umpires who call 'balls and strikes.'" It's a deliberately misleading narrative that conservative judges repeat at their Senate confirmation hearings.
Democrats have unfortunately helped promote the narrative of judicial objectivity. This actually undercuts their regular election-year messaging about the importance of the courts. If "precedent" and "settled law" are sacrosanct, then why was Roe specifically at risk? And if judges, once confirmed, can simply ignore precedent and even basic facts in a case, then how can we hold them accountable?
During Justice Ketanji Brown Jackson's confirmation hearings, Sen. Dianne Feinstein said, "The Supreme Court is not a political institution. Rather, the court stands above politics and above partisanship, and we look to federal judges to be independent and unbiased."
When I read this quote to Hatcher-Mays, she responded, "That's a very weird thing to say. That's completely out of touch with people using their senses to see and hear about what's going on with the court. It may be true that we do look to judges and justices to do that, to be neutral and fair arbiters of the law and constitution, but that is not the reality of what is actually going on."
Yes, that fantasy serves no one well. "No more Souters!" was a conservative rallying cry before Feinstein even entered the Senate, when Republican appointee David Souter began siding with liberals on key cases, such as affirmative action, school prayer, and Planned Parenthood v. Casey. The Federalist Society's whole purpose was producing reliable ideologues. After all, it's extremely risky appointing relatively young judges who'll serve for life if there's the slightest chance they might change or grow with the times. No conservative is worried about Amy Coney Barrett turning Souter on them.
We can rage against voters who didn't turn out for past Democratic presidential candidates, but Joe Biden himself has argued against one-party rule. Besides, Democrats don't nominate leftist ideologues (no matter what they say on Fox News). Justices like Jackson, Sotomayor, and Kagan don't ignore precedent and invent their own facts.
Even after the Supreme Court smacked down his student loan forgiveness plan, Biden resisted calls for serious reforms, such as court expansion, because he feared that would "politicize it, maybe forever, in a way that is not healthy." However, Hatcher-Mays stresses that the politicization has already happened. We're soaking in it.
Hatcher-Mays grimly notes that if Democrats do nothing drastic, it's estimated that the earliest liberals could retake the Supreme Court is in 100 years. I might be slowing down by then.
"We'll have died as second-class citizens without our rights being restored," she said.
No, thank you. We're not going to just accept defeat for the next couple generations. A radical right-wing Supreme Court will never relinquish power — or even accept oversight — voluntarily. We have to fight back. In the short term, that means confirming as many of Biden's judicial picks as possible (and to hell with those damn blue slips), but in the long term, Democrats will have to go big or democracy itself will go home.
You can watch the full interview with Hatcher-Mays below.
[ Rewire ]
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