The Way Forward
§ Strengthening and sharpening the funding from foundations and individuals. The conservative legal movement has vast financial resources offered by corporations and wealthy individuals. Shortly after Lewis Powell’s memo laying out a strategy for business to take back the Court was made public in September 1972, corporations began to spend millions on conservative law firms that championed the interests of their business sponsors; on groups like the Federalist Society, which grooms law students to embrace and promote a business agenda; on judicial seminars that indoctrinate judges in business-friendly approaches to the law; and on ad campaigns seeking to reshape the law with a greater deference to commercial interests. One of the earliest funders, former Treasury Secretary William Simon, who was president of the Olin Foundation, argued that corporate “philanthropy must serve the longer-term interest of the corporation. Corporate philanthropy should not be, cannot be, disinterested.”
Funders of progressive action need to play the same long-term game. Individuals and foundations could perform a singularly helpful role by bankrolling legal scholarship and the training of judges; by supporting advocacy at the national and state levels; by focusing on judicial nominations; and by contributing to the development of a progressive constitutional message expressed in terms that have broad public appeal.
Another place to start would be the establishment of a deeper pool of resources for progressive litigation. Think of it as a liberal counterweight to the National Chamber Litigation Center. Today, there are several organizations that run prestigious litigation programs in consumer rights, the environment, and civil and human rights. It’s time to explore ways of pumping funds into these groups and giving them the financial and legal stamina to fight the kinds of decades-long battles that the NCLC was set up to fight on behalf of business interests.
Most important, mounting a campaign to educate Americans about the courts will take significant financial support. Most people are unaware that court decisions affect almost every aspect of their lives. Focus groups conducted by Alliance for Justice reveal that most of the public has no idea how many justices sit on the Supreme Court, and few are able to name any of them. Americans are simply not tuned in to the fact that judges and justices have lifetime appointments, and thereby can have a much more lasting impact on the country than anyone else named to office by the president. A vastly enhanced progressive engagement will be required to raise the public awareness necessary to counter the conservative juggernaut.
§ Refining the progressive message on courts and the law. In many ways, the fight over the courts and the law has been a fight over language. Conservatives appropriate language, distort or invert its meaning, and repeat phrases endlessly until the meanings of the words change in the public mind. They have captured words like “liberty” and “freedom” and injected misleading buzzwords—“death panels,” “broccoli,” “judicial activism,” “unelected judges”—into the debate. They have convinced people that somehow the words in the Constitution belong exclusively to them and that only liberal judges can be “activist.”
Progressives need to take back the message. While we have some brilliant thinkers contributing a progressive view of the law, we need to develop simple terms that have public appeal. For instance, when we talk about the threats posed to Americans by the Roberts Court, we ought to focus on concepts like fairness and balance, as well as the threats to individual liberty from unchecked corporate power and a few massively wealthy individuals.
§ Being critical of the Court when criticism is warranted. As I talk to people around the country, I often encounter a reluctance to take on the Supreme Court directly. Progressives of a certain age established their view of it in the heady days of the Warren and Burger Courts, but this is a trap. We need to frame the debate over the Court’s actions as a battle between those who want to turn back the clock, culturally and economically, to the days before the New Deal, and those who want to build a just and diverse twenty-first-century society. When Justice Antonin Scalia tells Chris Wallace on Fox News that the right to bear arms just might include “handheld rocket launchers,” it’s time to be more assertive in making the Court a talking point in the national dialogue.
It’s a vastly different game today, and it’s being played out in courtrooms across the country, led by conservative interest groups and think tanks, corporations, right-wing funders, and Republican governors and attorneys general. They know they can undo seventy-five years of progressive legal principles by shepherding laws—one by one, case by case—to the front door of the Supreme Court, where their ideological confrères are waiting to weaken or eliminate them.
Progressives have a well-established philosophy of law rooted in the core American and constitutional values of equality, justice, freedom, fairness, community and opportunity. We need to recapture the conversation with assertive statements of our beliefs, while not hesitating to be respectfully but forcefully critical of those justices and judges who ally themselves repeatedly with the 1 percent.
We need a coordinated effort to close the political intensity gap between the left and the right. Those of us who fear that decades of social progress will be undone in the span of a few Supreme Court terms need to persuade progressive voters, activists and citizens of all stripes that the courts truly matter, and that they should hold their elected officials accountable for restoring balance to the courts so that all Americans, regardless of income or influence, can find the justice promised to them in our Constitution.
ALSO IN THIS FORUM
Bill Moyers and Bernard A. Weisberger: “The 1 Percent Court”
William Yeomans: “How the Right Packed the Court”
Jamie Raskin: “Citizens United and the Corporate Court”
Dahlia Lithwick: “One Nation by and for the Corporations”
Michael Greenberger: “The Roberts Court and Wall Street”
Craig Becker and Judith Scott: “Isolating America’s Workers”
Herman Schwartz: “Rewriting Antitrust Law”
Sherrilyn Ifill: “A Court Out of Touch”