Don’t Take Your Eye off the Court
--
This summer, Americans have looked on as the composition of the nation’s highest court shifted further to the right. Some are gleeful — this is what they’ve been waiting for. They voted for this. Others are wondering just how the hell we arrived at a moment in which the Supreme Court is capable of rolling back decades of civil rights progress.
Will we be talking about the 2016 presidential election until the day the world ends, a final chorus of reasons for Trump’s win competing for the top spot as fire engulfs the Earth? It’s not unlikely. There are quite a few separate but interconnected causes, most of which boil down to a poisonous cocktail of capitalism, racism, and misogyny that bury in contradiction the tenets of freedom and justice that the United States supposedly champions. But what got lost in the shuffle of election mania, and indeed what liberals apparently continue to miss, as evidenced most recently in Brett Kavanaugh’s confirmation hearing, is the importance of judicial branch ideologies in galvanizing voters.
For all of his searing incompetencies, Trump made clear to his base that the lasting leanings of the Supreme Court and its ruling constitutional principles were up for grabs in 2016. If the right wanted a conservative Court to reign for decades to come, electing Trump to make those appointments would be the only option. Meanwhile, Democrats failed to prioritize the long-game stakes of the judicial branch, an oversight that is on course to be perhaps both their most under-appreciated and egregious mistake. Because civil rights victories are not inherently permanent — one of the most valuable lessons of American history is that progressive strides are routinely at risk and need to be reaffirmed with each new generation.
The Supreme Court is a massive part of that determination, often making either progressive or prejudicial moves under a blanket utilization of lawful authority. In appointing life-serving justices, presidents are positioned to decide which side of crucial policy issues — abortion, gun control, environmental regulations, immigration, affirmative action, prison and tax reform, to name a few — the Court will validate. With numerous Court vacancies on the horizon, why weren’t those stakes made plainly clear to the broadest American public?
Because liberals were, and continue to be, poor prioritizers. To the dismay of progressives and the disservice of their constituents, they prioritize following procedure over extending and safeguarding civil rights. They talk about the act of voting as important, but mostly wax on rhetorically about its ability to spark hope while neglecting the actionable all-year-long educating, organizing, and resisting it takes to move policy and create tangible moments of change. They fail to explain in numerical, concrete terms the reverberating effects of putting the power of the highest court in the hands of people who talk about imperialism, patriarchy, and white supremacy as if they’re conspiracy theories, rather than the truest legacies of the United States.
The last Democratic administration elected to wring its hands while GOP lawmakers performed unprecedented obstruction of its nominee, reserving Justice Antonin Scalia’s vacated seat for a fresh conservative constitutionalist in the eventual form of Neil Gorsuch. With Justice Anthony Kennedy’s recent retirement from the bench, threat-to-every-marginalized-group Brett Kavanaugh will likely be confirmed along party lines and take a seat on the Supreme Court by the time its next term begins in early October, solidifying an even more conservative Court than we’re already used to.
The on-the-ground results of this will likely be…very bad, of course. Civil rights victories decided by the Court half a century ago are already in big trouble: the Voting Rights Act of 1965, for instance, lost its teeth in advance of the 2016 election. The addition of Gorsuch to replace Scalia in 2017 meant the demolition of workers’ rights in a 5–4 court decision earlier this year. With Kavanaugh’s confirmation, abortion rights will be at the greatest federal risk they’ve encountered since before Roe v. Wade’s ruling in 1973. And these are just a few of the issues at stake in the composition of the Court and its effect on the safety and wellbeing of millions of people. If liberals with platforms explained to their bases that civil rights are not permanently guaranteed, and so caring about the composition of the judiciary is critical, progressives could’ve been on the brink of a 6–3 Supreme Court majority. But in politics, smoke-screen trivialities continue to loom larger than life-altering, generation-defining jurisprudential debates.
The Senate has only rejected twelve Supreme Court nominees in U.S. history. It’s unlikely that conservatives will allow procedure to get in the way of ideology, or that liberals will break with procedure, get creative, and obstruct. But there are things worth obstructing, and legality and integrity are not equals. If not for obstruction, if not for prioritizing what’s right over what’s lawful, we would still inhabit an America without slavery’s abolition and universal suffrage and all of the other achievements reached by generations of people who pushed uncertain progress. To defer to those in power is to allow a small group of wealthy white men to make decisions on everyone else’s behalves and vote against their interests.
It’s time to make legible to all constituents what’s concretely at stake: their rights, their protections, their freedom. It’s time to stop putting procedural norms above ideological goals. It’s time to be both progressive and obstructive.
