Democrats seeking the presidency are talking about climate change, jobs, healthcare, tuition, taxes income inequality and Trump. Let’s say a candidate emerges, runs a flawless campaign, raises hundreds of millions, and becomes the 46th president. Let’s also assume the Democrats keep a majority in the House and even gain ground in the Senate. Will a new day dawn, or is there a missing piece in the puzzle?
There is. What about the courts? Ever since the days of Brown v. Board of Education and “Impeach Earl Warren,” the reactionary right has been obsessively fixated on the courts, hoping to reverse rulings on race, the environment, criminal justice, abortion, gender equality, civil liberties, worker protections, antitrust, regulation, unions, campaign finance and many more.
Big money has been behind the endeavor, often from libertarian and fossil fuel interests. For a complete dossier on the perps, you can’t beat Jane Mayer’s “Dark Money.” The goal has been to protect the rich and powerful few from the weak and disadvantaged many. The self-interest of those behind the assault on a liberalizing court has been behind a proliferating number of front groups with disarmingly patriotic-sounding names.
The Center for Law and Economics, The Institute for Justice, The Bill of Rights Institute, the Washington Legal Foundation, the James Madison Center for Free Speech, the Landmark Legal Center, and others are tools of the plutocracy designed to influence public opinion and bring court cases to protect their interests, including the fight to discredit climate science, to prevent the imposition of limits on campaign spending, to prevent corporate regulation or increased taxation on the wealthy.
Much of interest is economic, indeed the Center for Law and Economics aims to make judges consider not just justice in cases before them, but the economic impact their rulings might have. Since the libertarian backers of these endeavors regard almost all federal power as dangerous and malicious, they have also opposed laws expanding abortion or gay rights, or those limiting gun or property rights.
They seek to turn back the clock to the good old days before the Great Society, the New Deal or the Progressive Era of trust-busting, back to the Gilded Age when company goons shot down strikers with impunity, separate but equal was the rule for race relations, courts agreed to pretend that corporations were entitled to the same rights as human beings, and money talked.
Arguably the most powerful and influential of these fronts has been The Federalist Society which has played a very long game since its founding in 1982. The Federalist’s goal is ostensibly “checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning.” In practice, its purpose is top protect the wealthy from regulation and taxation by gaining control of the judiciary and limiting the power of the federal government.
It now has chapters at over 200 law schools. Over 70,000 lawyers in ninety cities are members. It recruits and indoctrinates right-leaning law students and funnels them to clerkships and academic posts and recommends members for judgeships. Once presidents based their choice of court nominees on non-partisan ratings on judicial fitness by the American Bar Association. No longer.
The last four Republican presidents have taken their marching orders from The Federalist Society. It vets lawyers not for judicial fitness but for political correctness. Robert Bork and Antonin Scalia were present at the creation of reactionary originalism. Two attorneys general have been Federalist members, so have two solicitors general, many lower court judges, law school professors and deans, cabinet secretaries, senators and six Supreme Court justices – Scalia, Thomas, Alito, Roberts, Gorsuch and Kavanaugh.
The left has no equivalent infrastructure to put judges on the bench, no similar farm team system to recruit and promote the careers of young lawyers who drink the anti-originalist Kool-Aid. No vast funding operation or liberal propaganda mill to promote anti-originalist interpretations of the Constitution.
But without the courts, any executive and legislative gains by Democrats may prove meaningless. The Trump administration and Senate majority leader McConnell have industriously packed the courts with young, originalist appointees with life tenures. McConnell even took the unprecedented step of denying President Obama’s last Supreme Court nominee a vote, effectively stealing a Supreme Court seat.
As a result, the Supreme Court is now controlled by a 5-4 originalist Republican majority and two of the non-originalist justices – Ginsberg and Breyer — are in their eighties and may not still be on the bench when the Trump presidency ends. This could result in a 7-2 edge for justices committed philosophically to jurisprudence anxious to make America antique again.
This matters to the everyday lives of the public and the integrity of their government. The courts are where a divided government’s disputes wind up. Do we want judges who think the 18th century had the last word on immigration, free speech, a free press, reproductive rights, the census, guns, healthcare, environmental protection, financial regulation?
The Founders were brilliant men who drafted a Constitution capable of permitting a government to survive and adapt to change for the last 232 years. But they never heard of climate change, assault rifles, computerized trading, nuclear weapons, fossil fuels, television, the internet, the iphone , Facebook, Google or women’s rights.
Voters who live in the 21st Century have a right to expect its courts to look at contemporary issues realistically, not as the periwigged, slave-owning, Puritans and country squires did. This is a good reason to vote for a party that will not pack the courts with anachronisms
And if liberal-leaning billionaires like Steyer, Bloomberg and Schultz want to make a real difference, instead of imagining themselves as president, they should imagine funding a counterweight to the malign influence of the Koch-funded Federalist Society.