Like I said the other day, there are encouraging signs that Donald Trump’s apparently unstoppable placement of a conservative justice to replace Ruth Bader Ginsburg has lit a fire under many Democrats to pursue a revitalization of American democracy, in which court expansion, abolition of the electoral college, voting rights protections, and statehood for Washington, D.C. and Puerto Rico are all on the table. And as Paul Waldman points out, polls show that significantly more Democrats than Republicans say that RBG’s passing makes it much more important that their candidate win the presidency than previously, reversing the traditional greater interest among Republicans in court appointments and their overall political importance. But as Waldman goes on to discuss, this greater awareness is coming just at the point when it’s seemingly more or less too late for it to matter; with a 6-3 conservative majority on the Supreme Court, Democrats can expect to see the Court upend a whole host of legislation, affecting everything from the economy and women’s rights to protection of the environment and our ability to have our votes counted.
But while Democratic voters carry some responsibility for not prioritizing court issues more over the past few decades, and without discounting the Republican norm-breaking and corruption that has allowed them to appoint a majority of conservative justices, far more responsibility must rest on the Democratic leadership of the last 20 years who, in important ways, are the ones who lost this pressing fight. In particular, the failure of the Democrats to use the GOP’s corrupt blockade of Merrick Garland’s nomination as an opportunity to turn the tables on the GOP must now be seen as much as a catastrophic miss for Democrats as a decisive win for Republicans. The GOP’s prioritization of both the Supreme Court and the federal courts has been in part an admission that the party is not popular enough to win a long-term majority in this country, and the Democrats have long had a wide-open path to describing the GOP’s focus on the courts as an illegitimate way to impose its will on a majority of voters who otherwise reject the Republican Party. The Democrats have also given a pass on publicizing more openly the retrograde conservative legal philosophies that, to all appearances, start with the anti-woman, anti-worker, and anti-democratic end goals of the Republican Party, and reverse-engineer legal doctrines that can justify them.
Obviously, there’s a tiny bit of tension between Democratic politicos pointing to the ascension of Amy Coney Barrett to the Supreme Court and declaring that the GOP now has a veto on progressive legislation for the next 30 or 300 years, and their appeals to Americans to vote for the Democratic Party to accomplish good things for the American people. The Democratic Party must find a way to negate the right-wing dominance of the Supreme Court, not just if it wants to accomplish anything but simply if it wants to make basic sense as a party.
The Democrats’ failure to prioritize the courts as a political issue is inextricable from the party’s unwillingness to properly name the growing anti-democratic, minority rule end game of the GOP, and to fully assert its own role as America’s majority party. Again, the statistic that needs to be drilled into everyone’s head: Democrats have won the majority of votes in all but one presidential election since 1992. Despite GOP gerrymandering, they have managed to capture back the House. And though they don’t control the Senate, millions more people voted for Democratic senators. I’ve been thinking a lot about this basic failure to make the most of the undeniable fact of the party’s majority status since reading a 2018 interview with historian Rick Perlstein, in which he talks about Democratic leaders holding on to traumas from defeats of the 1960’s and 1970’s far past the point where it makes any sense:
The Democratic Party doesn’t even know how to take yes for an answer. They can’t even accept the idea that they are a majority party. There’s this great line, “He who seems most kingly is the king.” Unless you act like a leader, people aren’t going to treat you like a leader.”
Not to reduce the complexities of the Democratic coalition and American politics overly much, but this observation really resonates. And not only have the Democrats not generally acted with the confidence of their majority and the popularity of their policies, they have failed to address head-on the currents of racism that have increasingly fueled the GOP political machine. Even as the Republican Party repeatedly and openly engaged in openly bigoted behavior, such as gerrymandering and voter suppression that targeted minority voters, the Democrats failed to put front and center the GOP’s racism, anti-majority aims, and basic lack of popular backing.
But there is no choice now, not when the GOP’s slipping share of the voting public has led it into the undisguised authoritarianism and white supremacism of Donald Trump. Not only is the Democratic Party on the right side of morality and history, their other, decisive advantage in this fight is that many more people actually support the Democrats. Not to promote this fact at every opportunity would be a sort of political madness. To bring it back to the Supreme Court and the GOP’s broader packing of the federal judiciary with right-wing ideologues — in the name of democracy, Democrats should go on the offensive now, not when the courts start blocking progressive legislation. On abortion, protect Roe with legislation to pre-empt Supreme Court efforts to undo it, as many have pushed for, and make similar pre-emptive legislative efforts on other fronts. Set the terms of the debate to privilege common sense and majority rule, so that when conservative judges start calling on crackpot theories to strike down popular laws, the ground has been set for a legitimate questioning of the bases on which the judges have ruled, and for a reform of the courts via expansion so that fair-minded judges can be appointed. Keep in front of the public consciousness the prior appointment of so many judges by the corrupt Donald Trump, as a reminder that balance needs to be restored.
In other words, present a consistent, coherent narrative of how and why conservative judges rule the way they do, in order to educate the public and build support for reforms. Particularly as Donald Trump and the GOP face a wipe-out in November, yet press ahead with the appointment of Amy Coney Barrett as if they had an overwhelming electoral mandate, the Democrats can all the more easily describe the reality of a GOP so corrupt that it thinks the losing party should appoint all the justices. The GOP is trying to scam the majority out of the power that rightly belongs to it.