Fight Back for Fair Courts
A fair judiciary is the cornerstone of a functioning democracy — so it’s no coincidence that right now, we have neither. Conservatives have stacked the courts with extremely conservative ideologues, most egregiously in 2016, with the nomination of Neil Gorsuch to the Supreme Court.
In the past four years, over 200 judges were confirmed to the federal bench, including two Supreme Court justices: Neil Gorsuch and Brett Kavanaugh. Trump’s judges overwhelmingly tend to be white, male, and very young. Many of them are unqualified. This is the legacy that will remain long after Trump is gone, since federal judges serve on the bench for life.
Every single issue we care about comes down to the courts. Unfortunately, Republicans in Congress have stacked the deck with ultra-conservative judges hand-selected by dark money groups. The overwhelmingly conservative judiciary has already led to unfettered money influencing our democratic process, the gutting of the Voting Rights Act which has led to historic voter suppression, rollbacks of critical environmental regulations, attacks on reproductive rights, and ongoing assaults on workers and immigrants.
How did we get here?
The current problems facing our courts are from decades of organizing by conservative dark money groups. Republicans have long understood how important the courts are in protecting conservative interests, and also how important they could be in blocking progressive change. That’s why judicial nomination proceedings — especially for Supreme Court seats — have become so politicized: Republicans want to get and keep control of the judiciary to ensure they can achieve their preferred outcomes in court.
However, this problem goes deeper than just Congress and a recent Senate report laid the problems bare. Trump’s judges were hand-selected by a group called the Federalist Society. This group serves as a pipeline for conservative judges, and they start recruiting members in law school. The Federalist Society’s goal is to make the judiciary as right-wing as possible by selecting judges that they know are friendly to conservative interests (think: pro-corporation, anti-abortion, anti-worker, and anti-immigrant)
To make things worse, the co-chairman of the Federalist Society, Leonard Leo, is also at the center of a network of right-wing dark money groups that spend millions of dollars to confirm conservative judges to the federal bench. The source of these groups’ funding is unknown, which means there could be individuals or corporations with business in front of a judge that they essentially paid for.
Conservatives have seen their plans work to resounding success. Under Chief Justice John Roberts, the conservative majority has issued over 80 partisan, 5–4 decisions (with no Democratic appointee joining the opinion) in cases that have delivered wins for corporate interests, with terrible consequences for the American people and our democracy. In addition, the over 200 federal judges already confirmed will continue to make rulings for the next several decades on issues like immigration and reproductive rights where their hardline conservative views are already out of touch with a majority of Americans
Where do we go from here?
While the situation is bleak, there are several court reform proposals that can address some of the issues facing the court, and all of them can be accomplished through simple legislation — no constitutional amendment needed.
First, term limits for Supreme Court justices. The Supreme Court in particular has become a victim of extreme partisanship, largely because there are so few vacancies. Senators on both sides of the aisle understand how critical the ideological makeup of the court is, so every vacancy is treated like an all-out war. The nomination process could be depoliticized by term limiting justices, ensuring that every president would get at least two Supreme Court picks per term.
Another option is court expansion. There’s nothing magic about the number nine. Throughout history, the total number of justices has fluctuated. Most recently, in 2016, Republicans manipulated the size of the Court to seize control. Progressives can reverse that illegitimate power grab the legitimate way: Legislatively increase the size of the court, as has been done in the past, and appoint new justices to make the court representative of all America, not just one narrow political faction. Doing nothing and hoping for the best is simply not an option — that would reward Republicans for their power grab for years to come
In addition to SCOTUS reforms, we could expand the lower federal courts. Not every case makes its way to the Supreme Court. Most cases are decided in the lower courts — but they’re a mess, too. Because of Republican senators’ wholesale obstruction of Obama’s judicial nominees, Trump has been allowed to stack the courts with dozens of extreme, unqualified judges. That means we need to add seats to the lower courts, too.
Finally, we could institute a Supreme Court Code of Ethics. Every single federal judge has to follow a code of ethics, which requires reporting of speaking engagements and paid travel to events hosted by outside groups. Except Supreme Court justices. They are not required to disclose speaking engagements, travel, interactions with outside groups, or sources of income. Because of this, we have no idea of the existence or the extent of the justices’ conflicts of interest with individuals, groups, or corporations with business in front of the court.
We can fight back for fair courts, but we need to do this together. Click here to get involved.
