Last Thursday, the Alexander Hamilton Forum hosted “The Courts in the Age of Trump,” a discussion that featured two distinguished legal scholars: Professor James Fleming of the Boston University School of Law and Professor John McGinnis of Northwestern University. They debated the implications and likely behavior of the Supreme Court, which now has a clear conservative majority. The conversation took a predictably partisan turn, with both professors extending advice to dejected liberals in the wake of Brett Kavanaugh’s confirmation.
Before considering how Democrats should deal with courts in the Trump era, it is worth asking: how did we get here? How, as Fleming put it, is our nation’s highest court composed of “an alleged sexually-harassing perjurer (Clarence Thomas), an occupant of a stolen seat (Neil Gorsuch), and an alleged sexually-assaulting perjurer with a Trumpian temperament (Brett Kavanaugh)?”
In 1991, Republicans on the Senate Judiciary Committee berated Anita Hill and then voted to confirm Justice Clarence Thomas, who Hill said had sexually harassed her when he was her boss. A comparable controversy ignited this October when Professor Christine Blasey Ford accused then-nominee Kavanaugh of sexual assault. Twenty-seven years after Hill, the same Committee with some of the same senators allowed the accuser to speak, but confirmed the nominee anyway.
The Republicans not only captured the Supreme Court; they did so with morally objectionable tactics and Justices. Many Democrats are understandably jaded. However, as Professor Fleming advised, “in the rough and tumble world of fiercely partisan, constitutional democracy, we have to be resilient.” Instead of lamenting the current state of the Court, we must devise strategies to resist conservative decisions.
Rather than dealing with the Supreme Court as it is, many progressives have promoted a fantasy that we may be able to impeach Kavanaugh. Even before Kavanaugh’s confirmation, progressives were considering ways to remove him. Progressive groups have raised money and collected 125,000 signatures for a petition to impeach Kavanaugh. Heidi Hess, the co-director of the liberal group CREDO Action which organized the petition, asserted that House Democrats should “know that progressives expect them to use their full power to get Kavanaugh off the bench if they gain control of the House.” While Hess’ rhetoric might appeal to disheartened progressives, it is counterproductive.
I argued in the column last week that Democrats should avoid talk of Trump’s removal or impeachment since such rhetoric infuriates and activates the tribal reactions amongst Republicans. Similarly, progressives should refrain from efforts to impeach Kavanaugh. The Kavanaugh controversy has helped Republicans excite their voters and reduce the enthusiasm gap with Democrats. Donald Trump Jr.’s tweet on October 5 illustrates the Republican tactic.
Trump supporters - The fight isn’t over. You better believe that Democrats are going to do everything in their power to impeach Kavanuagh from the Supreme Court if they take control of Congress in November.
This is war. Time to fight. Vote on Nov 6 to protect the Supreme Court!
— Donald Trump Jr. (@DonaldJTrumpJr) October 5, 2018
Impeachment is an attractive idea to Democrats. It is a “quick fix” to a conservative Supreme Court occupied by sordid characters. However, impeachment is impossible to achieve in reality. It takes two-thirds of the Senate to remove a Justice. Few political observers think that the Democrats will win a majority in the Senate in the next election, and no rational observer thinks there is any chance that Democrats will hold two thirds of the Senate. We must confront the Court situation as it is, rather than embrace fantasies. Progressives cannot wish away Justice Kavanaugh. Instead, we must be prepared to mount a protracted resistance to the conservative Supreme Court.
Liberals should heed Professor Fleming’s advice “to finally open their eyes and stop harboring hollow hopes that the courts will protect their rights and pursue or even enable progressive change.” It is true that the Supreme Court has expedited social change in the past. In 2015, the Court’s ruling in Obergefell v. Hodges recognized that the Fourteenth Amendment guaranteed the fundamental right to marriage to same-sex couples. However, progressives cannot wistfully reflect on how previous Courts promoted their moral ideals and constitutional vision. In the Age of Trump, conservatives dominate the Court, so liberals must find other means to promote social justice.
We should learn from how previous generations of conservatives resisted Supreme Court decisions with which they fundamentally disagreed. As the Republicans did, Democrats should use federalism as a mechanism for challenging the Court. Professor Fleming’s point on the subject was valuable. “When you have political power,” he encouraged, “whether in state legislatures or in congress or in the Presidency, pass laws that challenge or undermine objectionable Supreme Court holdings by providing occasions to narrow those holdings.”
Fleming pointed to the effectiveness of conservative efforts in undermining Roe v. Wade as a lesson for Democrats. By passing laws granting exemptions and challenging Roe at the margins, conservative legislatures precipitated future court decisions that narrowed reproductive rights. The conservatives’ culture war federalism should instruct progressive blue states’ federalism.
The conservative Supreme Court is here for the long haul (the oldest of the conservative five, Justice Thomas, is only 70). Thus, when Democrats control national, state, or local legislatures, we must use political power to advance our understandings of justice and restrict the Court’s decisions. However, before we can challenge the courts, we must vote and accumulate power in other branches of government. The consistent message of this column holds true: Democrats can only exert our influence if we win elections.
Next Tuesday (November 6) is Election Day. Register and vote so that we can resist Kavanaugh and the conservative Court in a meaningful way.
