(AP Photo/Alex Brandon)
Buried in an October 9 Washington Post poll of battleground congressional districts, one set of numbers jumped off the page for those of us who have, for two painful decades, tracked the slow-motion train wreck of the Supreme Court.
In this poll of likely voters in 69 districts, the issue most cited as “extremely important” was the “Supreme Court and other judicial nominations.” Sixty-four percent picked it, ahead of Donald Trump (60 percent), health care (57percent ), and the economy (55 percent).
To be sure, these numbers reflected the just-pushed-through confirmation of Brett Kavanaugh to the Court. What was more striking, and, one hopes, less ephemeral, was the partisan balance of those respondents. Among those who prioritized judicial nominations, 50 percent supported the Democratic candidate in the district, while 47 percent supported the Republican. Five days later, a Washignton Post-ABC News national poll reinforced those numbers: 66 percent called Supreme Court nominations “highly important,” and a near-majority (49 percent) “trusted” Democrats more than Republicans on that issue (38 percent trusted the Republicans more).
In prior decades, although particular decisions periodically caught the public eye, court appointments figured so little in voters’ electoral choices that pollsters rarely if ever bothered to ask about it. However, there was one critical exception—social conservative voters, especially evangelical Christians. For them, the make-up of the federal courts was persistently at or near the top of their list. Of course, the particular legal issues that fired up social conservatives—gender equality, gay rights, contraception, religion in the public square, and above all, abortion—also fired up their social liberal adversaries. But liberal culture warriors’ focus on the courts didn’t translate into ballot box clout. With the exception of pro-choice advocates, most of the beneficiaries and enthusiasts of liberal Supreme Court precedents took that regime for granted, dismissing the possibility of any looming existential political threat.
For Democratic constituencies with a primarily economic, foreign policy, or environmental focus, control of the courts has generally been less than a blip on their election-time radar screens.
For liberals, in short, battles over judicial nominations have chiefly been an activist insiders' game; for conservatives, such battles have been front-burner election issues that affected the outcomes of congressional contests, especially in purple and red states. This structural political asymmetry has been the root cause of the drip-drip-drip dismantlement of the post-FDR judiciary's platform for progressive government.
More liberals began to catch on in 2016. In late March, after Bernie Sanders had won five of the previous six primaries, Hillary Clinton gave a speech warning Democratic voters to avoid risking the “scary” prospect of a President Donald Trump's naming the late Justice Antonin Scalia's replacement and perhaps other justices, too. But after that, she rarely revisited the topic. In contrast, Donald Trump made Supreme Court appointments a primary reason why Republicans should turn out for him (and on this one issue, he wasn't deviating from the Republican norm). On November 6, a CNN exit poll showed that 56 percent of Trump voters cited the Supreme Court as “the most important factor” in their choice. Only 41 percent of Clinton voters viewed the Court that way.
This new entry on the list of Democratic priorities presents party leaders with a historic opportunity to turn the courts into a voting issue that can right the imbalance between Republican voters' focus on the court and Democratic voters' comparative inattention. This is long-term project—just as it was for conservatives when they first set out, in the 1980s, to upend the Warren-Burger Court constitutional consensus. But liberals have no choice but to take on this imposing project.
With three sitting justices over the age of 70 (two progressives, Ruth Bader Ginsburg and Stephen Breyer, and one conservative, Clarence Thomas), liberals must gird for possible Supreme Court appointment battles in the short term. With the political infrastructure for a conservative constitutional regime likely in place for the longer term, liberals must make their cause of moderating and ultimately unwinding that regime a durable political asset for their elective champions. To make that sale, liberal leaders must frame and market their case in ways that galvanize not just social-issue liberals, but also those constituencies open to progressive government because of pocketbook, environmental, political equality, or rule of law concerns and values.
Second, liberals must anchor their pitch in a coherent vision, not just laundry lists of discrete issues, threats, benefits, or grievances. To be politically marketable, that vision has to be credible as a constitutional vision, and impart a message that the law is on their side. While driving home the broad real-world importance of the courts, liberals must simultaneously make clear that it is they who stand unapologetically for the Constitution, for the aims and words of the framers, and for faithful adherence to the laws written by the people’s elected representatives.
Conservatives have long understood that constitutional politics is both of those things—constitutional as well as political. They hoist the banners of “originalism” and “textualism” over their agenda for the courts, even while ignoring them whenever they prove inconvenient to their political agendas. Liberals need not get into the weeds of refuting conservative “isms,” or fabricate “isms” of their own. What they do need to do is reiterate, early and often, that the vision of American government written into the Constitution by Washington and Hamilton and Madison, as well as the Bill of Rights, the Reconstruction amendments, and the Progressive Era amendments, was not the impotent-government dystopia of Ayn Rand or the Koch brothers. On the contrary, the initial framers and subsequent amenders carefully designed an “energetic” government, capable of ensuring a dynamic and fair economy, of ensuring equal economic, political, and social opportunity, of protecting fundamental individual civil and political rights and liberties, and of preventing authoritarian, plutocratic, or kleptocratic subversion.
To reclaim their place as stewards of the Constitution, liberals have to wrap themselves in it. The way has been shown by academics like law professors Akhil Amar and Jack Balkin, by progressive members of the bench, and, notably, by artists like Lin-Manuel Miranda.
In addition to broadening their appeal and bolstering their constitutional brand, liberals face a third prerequisite for digging out of their current hole.
They have to be realistic, and play the hand they've been dealt, even while working to strengthen it.
Accordingly, they should shun, at least at this stage, currently voguish institutional makeovers, like legislation to expand the size of the Supreme Court, or a constitutional amendment or legislation to limit Supreme Court justices’ terms. Since such proposals would be perceived as designed to advance the cause of a liberal judiciary, they are unlikely to gain any legislative traction unless liberals first succeed in their main job of generating popular political traction for the underlying cause itself. In effect, such proposals put the cart before the horse—but if liberals could get the horse, they could see little need for the cart.
Implicitly, institutional makeover proposals delegitimize the Court as an institution, and their proponents often do so explicitly. But a delegitimized Court is hardly in liberals’ long-term interest, since liberals deeply prize, and need to protect, the Court’s constitutional mission of safeguarding individual and minority civil and political rights.
But if attempting to delegitimize the Court itself would be a wrong turn, attacking conservatives for undermining the Court's legitimacy by seeking to make it an arm for their political agenda would be very much a way to go. As would calling out the conservative justices and their allies—loudly, bluntly, and often—for rigging the justice system against ordinary people, effectively immunizing big business law-breakers, facilitating voter suppression, and putting powerful official wrongdoers above the law.
Liberal advocacy groups and politicians have taken promising initial steps. Obamacare's near-death encounters in the Supreme Court made clear that the new breed of legal “conservatives” are actually not 20th century–style “judicial restraint” or “strict constructionist” conservatives, but genuinely reactionary activists bent on gutting or extinguishing landmark health, safety, consumer, employment, environmental, and financial security guarantees. Judging by the attention paid to current litigation threats to the Affordable Care Act in Kavanaugh’s confirmation hearings, that lesson has begun to sink in, and could well be a reason for the current spike in popular focus on the courts and judicial nominations. For liberal leaders, keeping the spotlight on that grim prospect, and effectively conveying its dangers for the public and the republic, is their best shot at regaining the upper hand in the war for the Constitution and the courts.
