J. Scott Applewhite/AP Photo
On June 28, 2018, Sen. Kirsten Gillibrand (D-NY) joined activists at the Supreme Court in Washington as President Trump prepared to choose a replacement for Justice Anthony Kennedy.
The Gallup organization has been measuring public opinion of the Supreme Court since 2000, and for most of that time opinion has been favorable on net. As recently as July 2020, 58 percent of Americans approved of the Court’s work, versus 38 percent disapproval. Three years later, public opinion has completely flipped. The most recent numbers, from a survey taken last month, show just 40 percent approval, tied for the record low in the series, with 58 percent disapproval, a record high. Just 11 percent have a “great deal” of confidence in the Court in the most recent poll, with 34 percent expressing “very little” support; these are also records.
What has happened in the intervening years is rather obvious: a high-profile ruling reversing Roe v. Wade and taking away a fundamental right, along with numerous other vicious decisions and a string of ethics scandals from the sitting justices. But there has also been a concerted effort by outside groups to appeal to Democrats about the realities of the current Court, countering decades of elite signaling that judges are impartial interpreters of the facts who mostly get things right. On top of that, the campaign stressed the salience of the judiciary in American governance, aiming to elevate judicial issues among an indifferent Democratic rank and file and its policymaking class, which didn’t prioritize judge nominations to the same degree as Republicans.
One of the main organizations that took on this challenge was Demand Justice, founded in 2018. Its co-founder and executive director, Brian Fallon, stepped down last month. Fallon, who was national press secretary for Hillary Clinton’s presidential campaign and a spokesperson for Sen. Chuck Schumer (D-NY), had been part of that policymaking establishment. But he came to see the lack of attention to the judiciary as an urgent political problem, and set out to do something about it.
His success cannot just be measured by opinion polling. President Biden has nominated 180 judges, and 140 of them have been confirmed, numbers that far outpace his Democratic predecessors. What’s more, Biden has not pulled names from the traditional pile of corporate lawyers. More than half of his nominees have been professionally diverse, with labor lawyers, civil rights lawyers, and public defenders added to the federal bench. Meanwhile, the White House and Democrats in Congress have been more willing to confront the Court and even strip its jurisdiction in legislation. Structural reforms like adding Supreme Court justices, another goal of Demand Justice, are admittedly far off, but there’s a growing coalition for these ideas.
“If you told us at the time [Demand Justice started] that Biden would be nominee, I would have thought there would be a fairly consistent approach as what we saw in the Obama administration,” Fallon said in a long interview last week. “[But] he appointed public-interest lawyers who have been smeared by the Ted Cruzes and Tom Cottons of the world, and have held all Democrats … There’s been party-wide acceptance of the idea. I think pressure will be immense on the next president to keep it going. It will have a generational effect.”
BACK IN 2016, WHEN ANTONIN SCALIA DIED and then-Senate Majority Leader Mitch McConnell unprecedentedly refused even to hold hearings on President Obama’s nominee to fill the seat, Merrick Garland, Fallon told me that the Clinton campaign devoted a week of speeches to the scandal. Few cared. “There just wasn’t any traction to it, voters weren’t galvanized by it,” he said. The following year, when Trump nominated Neil Gorsuch to fill the seat Garland never got, there was a live debate over whether to bother to filibuster him, which would trigger Republicans lowering the threshold for Supreme Court nominees to a bare majority. There was a filibuster, but it was half-hearted.
Meanwhile, liberal law professors like Neal Katyal vouched for Gorsuch as well-qualified; Katyal later represented clients before the Court. And he wasn’t alone. Other credentialed liberal legal elites produced constant messaging that Trump’s nominees were not that bad, that the Court wasn’t that bad—often highlighting the occasional “strange bedfellow” rulings with odd collections of justices—and generally whitewashing the Court’s reputation for a liberal audience.
C-SPAN
Brian Fallon on C-SPAN earlier this year
“What contributed to that dulled level of concern among the electorate was that the people on the progressive side that should have raised the alarm were captured by the Court,” Fallon explained. “They were trying to prop up reverence for the Court as a legitimate institution, because they were proximate to that institution. They clerked for the Court, spoke before the Court, worked for institutions that were trying to place clerks for the Court.”
He analogized it to the scene at the end of Animal House when Kevin Bacon’s character, amid absolute chaos at the annual homecoming parade, insisted, “Remain calm! All is well!”
The politicians largely took their cues from this elite, reluctant to go against lawyers or professors with important titles who insisted that Gorsuch or Brett Kavanaugh were well qualified and Supreme Court rulings well within the zone of normal jurisprudence. “We were trying to give courage and backbone to lawmakers to not defer to those elites,” Fallon said. “Only recently have they realized, if we still defer we will be incurring the wrath of our base.”
Demand Justice had a dual messaging challenge: to demystify for the public the reality of conservative judges being “politicians in robes,” as Fallon put it, and to de-credentialize the liberal legal blob’s self-interested effort to deny that reality. Events certainly helped them along. While the Gorsuch nomination was sleepy, Kavanaugh’s was riotous and polarizing, and according to Fallon, fundamentally changed the public’s relationship to the Court. On top of that, the last-minute replacement of the late Ruth Bader Ginsburg before the 2020 election, with Mitch McConnell reversing his position on nominations in an election year, further delegitimized the process, at least among the liberal base. Demand Justice ran campaigns on all of these nomination fights.
“If you track it, the downward trend predates Dobbs,” Fallon said, referring to the abortion ruling. Of course, this undoing of an accepted right accelerated the belief that the Court was largely political, and other decisions, like the invocation of the “major questions” doctrine to prevent the executive branch from regulating greenhouse gas emissions and enact congressionally authorized student debt relief, have more subtly demonstrated the ideological crusade, from a majority that much of the left thinks was ill-gotten.
This has not only soured Democratic opinion on the judiciary, but elevated its salience. Trump won voters who called the Court the most important or an important factor by two points in 2016; Clinton won those who called it a non-factor by 13. In 2020, that reversed; Biden won the single-issue Court voters by six points.
DEMOCRATIC REVULSION AT CONSERVATIVE CONTROL of the judiciary opened space for reformers to call for a different type of Democratic judicial appointee. Fallon spoke to the Prospect in 2019 about his call to reject nominees from “BigLaw,” the constellation of corporate law firms with close ties to the Court that populate D.C.
During the Biden transition, chief counsel Dana Remus sent a letter to Senate Democrats, who play a major role in the nomination process, asking for different kinds of nominees, with different life experiences. “What Republicans have been so good at,” Fallon said, is “if you make a name as a conservative lawyer, you get rewarded. It’s a credential for you to defend abortion bans and fight LGBT rights. For liberals, if you work for the ACLU, that would work against you. Everyone will think you’d be smeared as an activist. Democrats preemptively surrendered to Republicans.”
That has turned around, though not completely. The Prospect has reported on how some senators didn’t heed the White House’s call for professionally diverse nominees, in terms of race, gender, and work experience alike. But the White House, according to Fallon, explicitly asked senators for more names in those cases. “Their instinct consistently has been to look for people who fit the new trend,” he said. Demand Justice played a role in that by helping to identify candidates and endorsing diverse nominees; former Demand Justice official Paige Herwig became the White House point person for judicial nominations. (She left in July.)
President Biden has nominated 180 judges, and 140 of them have been confirmed, numbers that far outpace his Democratic predecessors.
Interestingly, one of the only Biden nominees forced to withdraw from consideration, Michael Delaney, failed because of opposition from the left end of the Senate caucus, due in part to his role with a limited-government organization that opposed Biden policies. Virtually all the other nominees have made it through a Senate that has only ever had 50 or 51 Democratic votes during Biden’s tenure. Some nominees from the 50-vote Senate of 2021 and 2022 were imperiled by Sen. Joe Manchin (D-WV), who was thought not to be supportive of them. But with an extra vote in 2023, Schumer returned to those nominees and got most of them through this spring, including voting rights attorney Dale Ho, labor lawyer Casey Pitts, public defender Natasha Merle, and reproductive rights lawyer Julie Rikelman. “It’s hard to argue against professional diversity,” Fallon said. “You will end up getting a new perspective that gives us a better judiciary.”
There has been one blind spot among Biden nominees: corporate power. In her very first case, Ana Reyes, a Biden appointee in D.C., was headed toward such a disastrous ruling on a merger between two door lock companies; in response, the Justice Department withdrew the case and settled. The recent loss for the Federal Trade Commission on the merger between Microsoft and Activision was at the hands of Biden judge Jacqueline Scott Corley, who failed to recuse herself even though her son works at Microsoft.
Both Reyes and Corley were corporate lawyers before becoming judges. But even Biden’s professionally diverse appointees have given puzzling answers to Congress on antitrust issues during the confirmation process. Given the damage the conservative courts have created on economic issues—most recently essentially ending fraud as a justiciable crime—the need for a counterweight is critical, and glaring by its absence.
Fallon said that the lack of buy-in from Senate Democrats on diverse nominees was one problem. But the other is that it’s been easier to win the debate with nominees fighting for abortion or voting rights. “We’re still as a party having a war between the old neoliberal approach and the new progressive movement,” he said. “A lot of the people ready for a judgeship are relics of an old system … The next frontier is that we have had for too long Democratic appointees on worker power and antitrust law that are indistinguishable from conservatives.”
THE CONFIRMATION PIPELINE MAY SLOW DOWN a bit because of the tyranny of Senate procedure. The Judiciary Committee, led by Dick Durbin (D-IL), is still upholding the “blue slip” tradition, which gives home-state senators an effective veto over nominees. This parochial patronage scheme has now created a two-tiered justice system. Many of the current vacancies on federal district courts are in states like Louisiana, Mississippi, Tennessee, Wisconsin, Indiana, Missouri, Oklahoma, and Florida, where there’s at least one Republican senator. There are eight vacancies in Texas and none of them have nominees.
“I think blue slips are a dying custom, but unfortunately not dying fast enough,” Fallon said. He noted that the Congressional Black Caucus has condemned blue slips as a segregationist relic, and threatened to oppose judicial nominations if the practice continued. It has set up a dynamic where the states with the worst practices on voting rights and other issues also have the most right-wing judges, because Democrats simply cannot fill those sears under a blue-slip system.
Blue slips in their current form are not even a real long-standing tradition. When none other than Joe Biden ran the Senate Judiciary Committee in the 1980s, blue slips were not an automatic blockade, merely giving senators time to weigh in on nominees. Biden once moved a nominee to the Senate floor over the objection of Democratic Sen. Alan Cranston of California, Fallon noted. “You don’t need to say you’re getting rid of blue slips, just go back to the Biden rule,” he said.
Democratic views on the courts are shifting in other ways, too. My colleague Ryan Cooper has written about how judicial review should not be viewed with such reverence, and this has actually manifested. When right-wing judge Matthew Kacsmaryk made a bid to eliminate access to FDA-approved abortion medication, Sen. Ron Wyden openly called for ignoring the ruling, and others joined him. In recent laws like the bipartisan infrastructure package and the debt ceiling deal, Congress included jurisdiction-stripping measures that forbade judicial review of things like broadband funding and executive branch prerogatives on regulation. And after the Supreme Court restricted the Environmental Protection Agency’s ability to regulate greenhouse gases, the Inflation Reduction Act reinforced that the EPA has this authority.
There has been one blind spot among Biden nominees: corporate power.
Even how Democrats talk about the courts has changed. Fallon highlighted certain “traitors to their class,” former and current law professors and court clerks willing to say publicly that the Supreme Court’s actions are politics in another form. And the Biden administration, despite the president’s institutionalist mindset, has escalated as well. After the Dobbs decision, for instance, the White House was flat-footed for several days on offering any practical alternatives to the ruling despite having had months of advance warning when the opinion leaked. But when the Court tossed out Biden’s student debt cancellation plan, just hours later the president announced his intent to pursue the same relief under different legal authority. He also responded to the Court’s ruling ending affirmative action by saying, “This is not a normal Court,” remarks that were not scripted.
While this isn’t yet an embrace of adding justices or seeking term limits, it’s reflective of the new approach, putting the Supreme Court squarely in the political arena rather than something above it. And it’s a first step to Demand Justice’s call for structural reforms.
“I would agree there’s a shift there,” Fallon said when I asked about these developments. “The last people to admit there’s a shift would be the Biden administration. And that’s fine.”
THE COURT HAS CLEARLY EMERGED as a political villain for Democrats. Their political strategy in 2022 depended heavily on fallout from the Dobbs ruling. The slow drip of ethics scandals has reinforced this. Senate Democrats are now explicitly demanding that Chief Justice John Roberts force a recusal in an important tax case from Justice Samuel Alito, who recently sat down for an hours-long interview with an attorney who will be trying that case.
Justices showed a modicum of sensitivity to this political pressure last session. But clearly the courts will remain unbalanced until the newfound desire to counteract them gains critical mass. The inattention lasted for decades; the shift is only a few years old.
One thing that isn’t as prevalent anymore is the self-sabotage on the left side of the spectrum. Fallon noted an earlier Alito interview with The Wall Street Journal in which he complained about how nobody was defending the Court. “The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense,” Alito said.
Setting aside Alito’s definition of fair, this has been a real dynamic. And the “organized bar,” the legal blob from both parties, has been eager to prop up the system. Their absence on the Democratic side is a testament to the work of Demand Justice and others to get real about the judiciary and the damage it has caused.
“I think he’s rightly diagnosing something partly responsible now for what’s going on,” Fallon said of Alito. “That chorus has not been there. People who would have been institutionalists are feeling pressure not to do that.”
