It’s undoubtedly come too late to prevent a lot of damage, but there are heartening signs that American progressives are finally, at long last, waking up to the nature of the existential fight in which they must engage over the future of the U.S. Constitution and the courts that will interpret it.
As Simon Lazarus reported yesterday in The American Prospect, public opinion polls are finally starting to reflect something that many progressive advocates have long been working to build: an awareness amongst progressive voters that the future of the courts is an issue iof top importance. This is from Lazarus’ story:
In prior decades, although particular decisions periodically caught the public eye, court appointments figured so little in voters’ electoral choices that pollsters rarely if ever bothered to ask about it. However, there was one critical exception—social conservative voters, especially evangelical Christians. For them, the make-up of the federal courts was persistently at or near the top of their list….
For liberals, in short, battles over judicial nominations have chiefly been an activist insiders’ game; for conservatives, such battles have been front-burner election issues that affected the outcomes of congressional contests, especially in purple and red states. This structural political asymmetry has been the root cause of the drip-drip-drip dismantlement of the post-FDR judiciary’s platform for progressive government.
After exploring the make-up of the Supreme Court and the other battles that now loom over the future of the federal courts, the story continues:
To reclaim their place as stewards of the Constitution, liberals have to wrap themselves in it. The way has been shown by academics like law professors Akhil Amar and Jack Balkin, by progressive members of the bench, and, notably, by artists like Lin-Manuel Miranda.
In addition to broadening their appeal and bolstering their constitutional brand, liberals face a third prerequisite for digging out of their current hole. They have to be realistic, and play the hand they’ve been dealt, even while working to strengthen it. Accordingly, they should shun, at least at this stage, currently voguish institutional makeovers, like legislation to expand the size of the Supreme Court, or a constitutional amendment or legislation to limit Supreme Court justices’ terms. Since such proposals would be perceived as designed to advance the cause of a liberal judiciary, they are unlikely to gain any legislative traction unless liberals first succeed in their main job of generating popular political traction for the underlying cause itself….
Liberal advocacy groups and politicians have taken promising initial steps. Obamacare’s near-death encounters in the Supreme Court made clear that the new breed of legal “conservatives” are actually not 20th century–style “judicial restraint” or “strict constructionist” conservatives, but genuinely reactionary activists bent on gutting or extinguishing landmark health, safety, consumer, employment, environmental, and financial security guarantees. Judging by the attention paid to current litigation threats to the Affordable Care Act in Kavanaugh’s confirmation hearings, that lesson has begun to sink in, and could well be a reason for the current spike in popular focus on the courts and judicial nominations. For liberal leaders, keeping the spotlight on that grim prospect, and effectively conveying its dangers for the public and the republic, is their best shot at regaining the upper hand in the war for the Constitution and the courts.
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