The Courts’ Legitimacy Crisis Is an Opportunity Democrats Should Seize

The Courts’ Legitimacy Crisis Is an Opportunity Democrats Should Seize

The Courts’ Legitimacy Crisis Is an Opportunity Democrats Should Seize

Calling out corrupt judges and reactionary courts is good policy—and good politics.


When liberals worry about the future of democracy, they have Technicolor nightmares: the orange oaf inciting an attack on the Capitol by his red-cap-wearing MAGA minions, including the QAnon shaman with his ridiculous stars-and-stripes facial makeup. But the threat to democracy is multipronged and doesn’t always come in vibrant hues.

Trump’s most thuggish supporters represent the street-fighting wing of the right. But as much as the goons unleashed a level of violence unseen in national politics in decades, they also proved politically ineffectual. The January 6, 2021, insurrection was successfully thwarted; Joe Biden was duly inaugurated; the majority of the public was horrified by Donald Trump’s antics; the January 6 committee provided a narrative that blamed Trump and cemented the popular consensus; and the Democrats have successfully used the memory of the clownish coup attempt to trounce MAGA candidates in special elections and the midterms.

In contrast to that abject failure, Trump’s greatest success has been in cementing reactionary power over the commanding heights of the American political system: the federal judiciary. The project to make the judiciary a bulwark of right-wing power long predates Trump. But Trump’s crucial four years in the White House allowed him to appoint three Supreme Court justices, 54 judges on the courts of appeals, and 174 judges on the district courts—pushing the judiciary far to the right.

Unlike the MAGA mob, reactionary judges don’t present a visual spectacle. They wear the black robes of respectability and exert their power in decisions full of arcane jargon. But the reactionary courts—precisely because they embody institutional power—pose a more serious threat to American democracy than even the largest mob of MAGA ruffians.

In striking contrast to the successful deployment of January 6 by Democrats and “Never Trump” Republicans as a cudgel to delegitimize MAGA, political opposition to the right-wing courts is still coalescing—and remains deeply divided. The national leadership of the Democratic Party—notably Biden’s White House and Illinois Senator Dick Durbin, chair of the Senate Judiciary Committee—has little appetite for a fight with the right-wing courts.

The timidity of the Democratic Party leadership stands in stark contrast to the actions of the Republican-appointed judges themselves, who increasingly display the impudence of those who know they enjoy near-absolute impunity. Federal judges have lifetime appointments. They can only be removed if they are impeached in the House by a majority vote and convicted in the Senate by a two-thirds vote. This very high hurdle has been cleared only in the rarest of cases.

Judicial power derives not just from lifetime appointments but also from the gridlock that has overtaken American politics. Over the past few decades, the courts have filled the policy-making vacuum created by Congress’s inability to pass laws and the increasing reliance on executive authority by successive presidents. In effect, judicial review, rather than congressional oversight, has become the preferred way to thwart or check presidential actions.

Now dominated by extreme ideologues appointed by Trump and earlier Republicans, the courts haven’t been shy about flaunting their power. The Dobbs decision, overturning a constitutional right to abortion that had been affirmed for nearly five decades, is the most far-reaching instance of the Supreme Court’s right-wing activism. But Dobbs stands alongside decisions that erode the separation of church and state, curtail environmental laws, and limit the government’s power to implement gun control. Lower courts, particularly in red states like Texas, are coming up with even more radical opinions, notably US District Judge Matthew Kacsmaryk’s decision to end access to a widely available abortion drug. (That decision is currently stayed and will likely be settled by a higher court.)

Beyond these displays of judicial power, several justices are increasingly lawless in their personal conduct. Clarence Thomas and Neil Gorsuch are both entangled in potentially serious conflict-of-interest violations for not disclosing lavish financial benefits from wealthy individuals who have business before the court.

A robust and unified Democratic Party could successfully push back against the reactionary and lawless courts. Activists have suggested a raft of policies congressional Democrats could embrace, such as enacting ethics reforms (including setting guidelines for Supreme Court justices) and investigating judges. As Molly Coleman of the People’s Parity Project notes, Congress could strip “the judiciary’s power to hear cases related to specific pieces of legislation, or by routing all challenges to a given statute to a court of its choosing. It can eliminate the power of a single judge, like Kacsmaryk, to issue nationwide injunctions, a power invented by judges but well within the authority of Congress to modify or eliminate.”

Unfortunately, the current leadership of the Democratic Party doesn’t have the stomach for these fights. It’s telling that Clarence Thomas currently cannot be subpoenaed because Senator Dianne Feinstein, who sits on the Judiciary Committee, hasn’t been able to perform her duties due to various health problems.

Taking on the courts is good politics, since they are rapidly losing legitimacy because of their widely hated decisions. Last September, Gallup reported that approval of the courts was at a “historic” low. In late April, Justice Samuel Alito gave a bitter interview to The Wall Street Journal in which he bemoaned the fact that the “legitimacy of the courts” was being undermined by those saying, “They’re illegitimate. They’re engaging in all sorts of unethical conduct.”

Though Alito blames the messenger, the media has simply been reporting on what the courts are doing—and Americans have taken note. But if the Democrats made checking these lawless courts a rallying cry, such sentiment could move from a problem to decry to a golden opportunity for real change.

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