Politics, Supreme Court

Like It Or Not, The Left Still Loves The Supreme Court

Possible Hillary slogan: "It's the Supreme Court, stupid!"

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Supreme Court 1In 1992, Bill Clinton’s campaign went all in on the phrase, “It’s the economy, stupid!” For a Hillary Clinton campaign trying to mend fences with disaffected Bernie Sanders supporters, the slogan may well be, “It’s the Supreme Court, stupid!”

Perhaps there’s a burgeoning progressive argument against making every election boil down to the Supreme Court, but there’s an equal and opposite mixture of practical fear and Court reverence alive and well on the Left. If Jamie Raskin, speaking on the panel I wrote about yesterday, believes it’s time for progressives to “fall out of love with the Supreme Court” and its tarnished “halo,” the second panel I covered last Friday at Netroots Nation exhibited an even deeper sense of pessimism about averting focus from the Court, regardless of its institutional weaknesses. It’s easier to win the battles people need to win today in a courtroom than to change hearts and minds in the Mississippi legislature. To this way of thinking, those who are cautious about orienting politics around the Court are, at least in the current landscape, arguably coming from a place of privilege.

Alliance For Justice’s Nan Aron and Center for American Progress’s Anisha Singh assembled the ideal counter-balancing panel to the earlier discussion (even if they had no way of predicting what had immediately preceded them). Rather than repeating the clichéd “Supreme Court is sooooo important” trope hashed and rehashed time and again from the perspective of career lawyers or academics, this panel put non-lawyer grassroots activists center stage to discuss how important the courts are to their causes. If elevating the courts to a pedestal was a bad idea, it doesn’t change that it’s happened, and people fighting real political battles need to deal with it.

Not that the panel didn’t include its share of appeals to the “Supreme Court or Bust” model of Democratic politics. Representative Keith Ellison, a noted Bernie Sanders supporter and attorney, kicked off the proceedings with the pep talk about the importance of supporting Hillary Clinton because of the Supreme Court, and another Sanders supporter, Senator Jeff Merkley, sat on the panel. Aron also made an early nod to her eye-catching new microsite highlighting the dire importance of the next president to the makeup of the Supreme Court. I strapped in for a recapitulation of the standard Democratic argument.

And on the campaign finance question at issue in the earlier panel, this panel couldn’t mount a great defense of Supreme Court reliance either. At one point, Aron and Senator Merkley had an exchange about campaign finance and mused that, given that the Court can agree that campaign restrictions are important in judicial elections, perhaps introducing a justice with experience as an actual legislator might advance the cause of reform by bringing personal experience with the dirty process into the proceedings. Given that Justice O’Connor, the last justice with significant legislative experience, dissented in Austin, this might be a bit too much to hope for.

But the contrast to the prior panel came when the focus shifted directly to the perils facing political minorities. Renee Bracey Sherman, a board member of NARAL Pro-Choice America, explained how she took on a personal role in the Supreme Court’s recent abortion battle, authoring an amicus brief collecting stories about the impact of abortion regulations on real women. Considering that the governor of Indiana, a state that has functionally criminalized miscarriages — seriously, women who have miscarriages are getting prosecuted as suspected self-abortionists — is now in the national spotlight, the viability of the constitutional rights established in Roe and (as amended?) in Casey seem particularly vulnerable as we look at a 4-4 Court.

Turning from a progressive Supreme Court success to a loss, Ambar Pinto, the 22-year-old co-founder of Dreamers of Virginia and part of United We Dream’s Deportation Defense Program, discussed the Supreme Court’s punt on immigration, which hands the case back to the already hot-headed anti-immigration Judge Hanen. In an area of the law increasingly building local-federal partnerships to harass and detain people unaware of their rights, winning court battles is the only recourse available.

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It was a compelling explanation of why certain populations, in particular those important to progressives, can’t quit the Supreme Court. And yet, it’s a dangerous game. Personally, I felt that Utah v. Strieff was the never-mentioned elephant in the room. What happens when progressives place all their eggs in the basket of a Clinton nominee and they get the next Justice Breyer ready to sidestep the Fourth Amendment? If we’ve grown weary of the “too big to fail” analogy, then there’s a “live by the sword, die by the sword” one right here for you.

Perhaps the synthesis of the two panels was put forward by Anisha Singh, noting the importance of the judiciary to progressive reforms, but warning against fixation on the Supreme Court when the judiciary as a whole is understaffed (100 vacancies as of today, with 30 courts having declared judicial emergencies), and critically important to vindicating citizen rights.

Every single issue we all care about ends up in the courts. In some way shape or form whether it’s a lower court or the Supreme Court. It is our job to spread the word that there are vacancies that need to be filled. Not just filled with anyone, but with diverse judges who understand our everyday experiences, lived experiences, and can give fair determinations to our issues and cases.

On the last point, a questioner echoed the issue of judicial diversity. After all, the Alliance For Justice created a celebrated report outlining both the personal and professional homogeneity of the judiciary, composed mostly of old, white men from corporate or prosecutorial backgrounds. Senator Merkley cited Republican obstructionism as an impediment to Obama nominating anyone who deviated from that mold, obstructionism somewhat quelled by the filibuster reform he championed.[1]

That’s all well and good, but it doesn’t address the corollary issue that there may not be lawyers from these diverse backgrounds volunteering to be considered for these appointments. After all, it’s really easy to become a federal judge when you’ve paid off your loans and built a nest egg of a few million, while a career public defender may not have that luxury. Sherman took on the question directly, citing Irin Carmon, relaying a conversation she had with Justice Ginsburg in the writing of Notorious RBG (affiliate link):

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[Carmon] actually talked to RBG about that, and [RBG] was saying that just like there are a lot of systemic things in place, and just like it’s hard to get women, people of color, queer folks to run for office, you have to ask them multiple, multiple times… it’s the same thing. So [judicial candidates] have to be asked over and over again, and also that RBG said that it’s around the clerk system — if you look at when the justices are deciding who they want to clerk, they’re picking people who look just like them and so if the justices are white, men, and older, they’re saying, “well Tommy looks just like me, come on up and be my clerk.”[2] It’s one of those things where we have to really impact people when they are in law school, and we have to check the system of who can even get into law school… because it’s so expensive an how is it that people who in communities of color are even going to get there.

You’ll get no argument from these quarters that law school is debilitatingly expensive for whole swathes of the population and that the system encourages underserving areas of the law that won’t pay back those loans.

But here the progressive movement rests, locked in a love-hate relationship with its reliance on an institution that, by design, can only ever “stop the hemorrhaging” (to quote something Sherman said during the discussion). It’s an odd position for a political persuasion with “progress” right there in their name, but there may be no good way to shift the goal off controlling the courts in the short-term for the constituencies that rely on them right now.

Earlier: The Liberal Argument Against The Supreme Court

[1] Though, it’s worth noting, that the filibuster “solution” that the Senate Democrats ultimately adopted deviated from Senator Merkley’s much, much better original proposal. Meanwhile, the current policy may have helped with some judicial crises, but is fraught with its own problems.
[2] At this point, I added that Above the Law puts out the annual list of Supreme Court clerks, like this one from last year.

Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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