Reclaim the Courts

This piece is part of the Prospect's series on progressives' strategy over the next 40 years. To read the introduction, click here.

Lewis Powell built much of his strategic advice to the U.S. Chamber of Commerce on the premise that “the judiciary may be the most important instrument for social, economic, and political change.” Powell was both making an observation about the decades preceding his memo and issuing a call to arms to his corporate audience about the strategic prominence the courts should be given within a broader set of goals.

Through the early 1970s, the courts led the way in dismantling the legal structure of racial segregation in marriage, education, and housing, enforcing the separation of church and state, guaranteeing the right to vote, overturning bans on contraception and abortion, and expanding consumers’ rights. The courts recognized that citizens’ noneconomic values—matters such as liberty and privacy and protecting the planet—may trump the political and economic status quo. Courts were essential to leveling the playing field when the interests of individuals and communities face off against the interests of large corporations and callous governments.

Powell viewed these developments with considerable alarm and proposed a long-term plan to recapture the courts. His advice led directly to the founding of right-wing litigation shops implementing libertarian and pro-business agendas. Soon thereafter, the Federalist Society began to develop a network of conservative activist attorneys, including future judges. Funders sponsored pro-business scholarship on “law and economics” throughout the legal education system and supported a relentless media strategy that continues to demonize the courts and litigation even while making active use of both.

The results are remarkable. Today, conservatives control the Supreme Court, dominate the lower courts, and have a deep bench of well-groomed judicial candidates. The right is organized to evaluate judicial candidates based on a set of ideological litmus tests and to advocate for their favorites and against even moderate alternatives. The courts are dismantling the ability of citizens to band together and seek justice through class actions and public-interest litigation, creating wider latitude for corporations and government agencies to ignore the law without fear of citizen enforcement. Congress is now entertaining proposals stripping judges of the power to reach the merits of cases and render a just result. As Powell foresaw, power has steadily migrated back to corporate interests.

Of course, progressives have a general awareness of the importance of the courts. Every four years, during the presidential election, the prospect of a new president nominating Supreme Court justices makes the laundry list of reasons to vote for a particular candidate. A blockbuster case such as Citizens United garners a lot of attention. Between elections and the occasional blockbuster, however, the courts are largely ignored as a part of a broader progressive agenda.

So what do progressives need to do?

First, create a lasting, focused vehicle to coordinate and exponentially expand funding. This can be done by copying the successful model of the Energy Foundation, which in the world of energy and climate policy pools resources from many donors, builds staff expertise, and consolidates strategy. Such a funding source could compete with the right’s funders to deliver the resources needed to act at the national scale over several decades. To reclaim the courts, progressives need to apply all of the strategies that the right has used: scholarship and legal education; advocacy regarding judicial nominations; litigation; legislative advocacy; and public education. A disciplined and coordinated funding source devoted to this mission could strengthen and sharpen all of these strategies while maintaining a long-term view, often missing from grant-driven programs.

Second, invest aggressively in research to develop public messages and to create the megaphones needed to deliver the stories. What will best connect the dots for an active and concerned public regarding the role of the courts? Build on the efforts of organizations like the Alliance for Justice, which works across the spectrum of progressive advocacy organizations to highlight the importance of the courts and of judicial nominations, and the American Constitutional Society, which is developing networks of progressive legal scholars.

Third, practice what we preach. Organizations that use the courts need to be bolder and more consistent in how they talk about the importance of the courts and how they advocate for the courts themselves. They need to work together with other organizations across the many other sectors that also use the courts to develop common language and devote more of our resources to a long-term project to recapture this terrain.

In the civil-liberties, civil-rights, consumer, labor, environmental, and social-justice fields, we need to come together to reclaim and protect the courts. The threat is aimed at all of us, and the response will require all of us. 

Read the other pieces in this series:

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