Democrats snoozed while Republicans took over the courts. It's time to fight back

Moira Donegan
<span>Photograph: Andrew Caballero-Reynolds/AFP via Getty Images</span>
Photograph: Andrew Caballero-Reynolds/AFP via Getty Images

Last Sunday, a boisterous group of protesters, primarily women, marched through Washington. They stopped in front of the home of Mitch McConnell, the Senate majority leader, and gathered on the steps of the supreme court. The protest, called “Reclaim the Court”, was led by civil rights groups like Planned Parenthood Action, the Center for Popular Democracy, and the Women’s March, and was meant to mark the first anniversary of Brett Kavanaugh’s confirmation, and came on the heels of new reporting that lends corroboration to accusations of sexual assault by and provides greater evidence that he lied under oath at his confirmation hearings, charges which he has denied.

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Protestors carried signs that said “KAVA-NOPE” and “SUPREMELY CORRUPT.” A sister demonstration took place in Portland, Maine, where constituents expressed pointed displeasure at Susan Collins, the Republican senator who voted to confirm Kavanaugh last year. At a podium on the court steps in DC, protesters called on Jerry Nadler, the House judiciary committee chair, to initiate impeachment proceedings against Kavanaugh, as he previously promised to do if Democrats won the House in the 2018 midterms. There was palpable rage at the appointment of Kavanaugh, whose presence on the court symbolized the persistence of two great threats to women’s full citizenship and bodily autonomy: sexual assault and the erosion of abortion and contraception rights. Chants rose up of “My body, my choice.” A sign raised towards the court façade read “BELIEVE SURVIVORS.” The demonstrators felt that the court has the power to make life-altering decisions about the rights and freedoms of women, and that Kavanaugh’s presence there indicated that they would not choose well.

But the protesters’ anger at the court went beyond Kavanaugh himself, and beyond, even, the insult to women’s dignity and threat to women’s rights he represents. Congresswoman Ayanna Pressley of Massachusettes, told the crowd: “Kavanaugh may have that seat (for now), but what we are fighting for is so much bigger than one insecure man blinded by his privilege.” The protesters see Kavanaugh as only the most egregious symptom of a court system that is gravely diseased. Their fight speaks to a growing liberal agitation around the judiciary, led by feminists, that is poised to change the politics of the courts.

Traditionally, it was the right that cared about the judiciary. Republicans ran on promises to appoint judges that would uphold conservative social values, and oppose abortion and gay rights. Those judges, in turn, enshrined the legality of gerrymandering, curtailed voting rights, and opened the floodgates of unlimited corporate money in politics – interventions that have enabled the Republican party to maintain power even in districts where they have only a minority of popular support. The result became cyclical: Republicans won by promising to appoint conservative judges, and then those conservative judges issued decisions that helped more Republicans win.

To the left, the judiciary had often been more of an afterthought. Conventional wisdom held that the judiciary could not be counted on as a motivating issue for Democrats the same way it could for Republicans. But Kavanaugh’s appointment brought a new sense of urgency to the matter; the court’s new conservative majority, and the spectacle of the emotional Senate confirmation hearings through which Republicans secured this majority, galvanized a Democratic base that increasingly feels as though its basic civil rights are imperiled under a federal judiciary packed with Trump appointees and a supreme court controlled by Trump allies.

There is some evidence that this concern expands well beyond the activist left: in September, a poll conducted by the firm PerryUndem found that 60% of Americans thought it likely Kavanaugh committed perjury during his confirmation hearings, which suggests popular support for impeaching him may be easy for Democrats to come by. Support for abortion rights is even higher, meaning that the supreme court, which is poised to issue the first assault on abortion by its new conservative majority just before the 2020 election, is not only comprised of justices that the people do not trust, but is also likely to hand down opinions that the people do not want.

And this is the problem with the Supreme Court: it is a profoundly un-democratic institution, and has only been made more so by the right’s determination to politicize the court and to manipulate it into helping them secure a policy agenda that runs counter to popular will. The gross injustice of the Kavanaugh confirmation made Americans—and feminists in particular—more aware of the urgency of the problem, and less accepting of its inevitability.

Now, every major Democratic presidential contender must be able to answer tough questions about how they will reform the courts; several, including Kamala Harris and Elizabeth Warren, have joined the call for Kavanaugh’s impeachment. Some of the court reform proposals that have emerged from the Democratic field have been halting or insufficient, paying undue deference to a myth of an apolitical court. Others have been more aggressive, more willing to treat the court as the political institution Republicans have long treated it as.

At any rate, the Democratic base wants answers: it is no longer acceptable for the party to be as passive and accepting of Republican aggression on the judiciary as its once was. In Portland, Maine, a small child carried a sign to the protest: “FAIR COURTS FOR MY FUTURE.” Beside him, an older woman was even more pointed: “CONSERVATIVE JUDGES ERODE FREEDOMS FOR ALL.”

  • Moira Donegan is a Guardian US columnist