Brian Fallon of Demand Justice: “Progressives need to hold Democrats accountable for their role in aiding and abetting Trump’s takeover of our courts and insist on a more aggressive response.” -promoted by Laura Belin
Our democracy is broken, and the Republican capture of the Supreme Court is a major reason why.
Over the last two decades, decisions like Bush v. Gore, Citizens United, and Shelby County v. Holder have betrayed the principle of “one person, one vote” and undermined confidence that our elections are truly free and fair.
With its decision this term in a high-profile gerrymandering case, the Republican majority on the court has gone further still, effectively given a green light to the partisan redrawing of maps.
At this point, our democracy is so compromised that, for Democrats, simply winning the next election will not be enough to solve the problem. Just imagine for a moment that 2020 goes well and a newly elected Democratic president takes strong executive action or that a Democratic-controlled Congress succeeds in passing progressive legislation for that new President to sign. Our current, Republican-controlled court will pose a permanent threat to any such progressive reforms, no matter how popular. Statehood for the District of Columbia? Medicare for All? A Green New Deal? All would be in danger.
The current situation with the court is no accident. Republicans have prioritized filling the courts with partisans for decades. They’ve spent hundreds of millions of dollars to engage their base on the courts and promote ultra-conservative nominees who have little regard anymore for the role of precedent. In the last two terms alone, the Republican majority on the Supreme Court has overturned three precedents that were at least 25 years old.
Republican politicization of the courts is old news to Iowans. Every Iowan remembers the outburst that Republicans had when the state Supreme Court ruled to legalize marriage equality a decade ago. Iowa Republicans only grew more incensed earlier this year when a state judge found that the state’s Constitution protects a woman’s right to have an abortion. In retaliation, Republican leaders passed a law this year to politicize how Iowa chooses many of its state judges, including supreme court justices. Governor Kim Reynolds even had the audacity to sign the law flanked by the special interest group that led the campaign to unseat the state supreme court justices for their marriage equality decision in 2009.
In the past, progressives have been slow to respond to these assaults on our courts. But a shift is taking place since Republicans stole a Supreme Court seat from President Barack Obama and rammed through Brett Kavanaugh’s confirmation. Democrats are starting to wake up.
In a survey conducted by YouGov and released in April by Demand Justice, only 23 percent of likely Democratic primary voters approve of the job the Supreme Court is doing and 73 percent say that Brett Kavanaugh’s confirmation proves it just another partisan body. More than 70 percent of these respondents said Democratic senators should vote against all Trump judges.
Some Washington Democrats have been slow to get the message. Take Colorado Senator Michael Bennet, who is now running for president. In the first two years of Trump’s presidency, Bennet supported 67 percent of Trump’s judicial nominees, including voting to advance Trump’s pick to fill the Supreme Court seat that Republicans stole from President Obama.
Progressives need to hold Democrats accountable for their role in aiding and abetting Trump’s takeover of our courts and insist on a more aggressive response. Just as Iowans fought against the politicization of this state’s courts, we must demand that Democrats promise to restore balance, fairness, and accountability to the Supreme Court.
Some leading Democrats are showing leadership on this issue. Former Attorney General Eric Holder and presidential candidate Pete Buttigieg have both called for structural reform of the size of the Supreme Court. Here in Iowa, former state Attorney General Bonnie Campbell has also called for reform, including by adding seats, which has been done many times throughout our history through simple legislation.
Beyond adding justices, the next president could also restructure the court by instituting term limits, forcing the court to abide by a code of ethics, or changing the court’s jurisdiction. Whatever the specifics, the goal should be to restore balance to the court and depoliticize it. Democratic voters now see the Supreme Court as a problem that needs to be solved, and the candidates will be judged on whether they come up with a solution commensurate with the problem. The people are waiting for them to lead.
Brian Fallon is the Executive Director of Demand Justice, a progressive organization that engages in advocacy regarding judicial nominations and the federal courts.