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Stop the Kavanaugh Court, Save the Progressive Agenda

Authoritarians often persecute the most vulnerable targets first, and when President Trump took aim at transgender servicemembers, some wondered if he’d parlay the successful reinstatement of the ban into efforts to roll back policies of equal treatment for women, immigrants, and gays and lesbians serving in the military. Sure enough, the same week that the Supreme Court authorized the Pentagon to implement the transgender ban, a pressure group led by Justice Clarence Thomas’s wife lobbied Trump to oppose women in the armed forces.

In fact, last week’s action by the Court should be a wake-up call to any progressives who have been lulled by the election of a Democratic House of Representatives into cautious optimism about the resilience of our political system. Indeed, the Court’s transgender troops decision is a canary in the coal mine not just for those directly affected by the cruel, unnecessary ban, but for the entire progressive agenda.

Most progressives agree that new laws protecting the political process—banning voter suppression, dark money, and gerrymandering—are needed to restore democracy, as are laws expanding health care, reducing economic inequality, fixing immigration, dismantling white supremacy, banning guns, and addressing climate change. Yet even if progressives manage to sweep into office in 2020 and pass new laws, the Court’s ruling on transgender troops suggests that Justice Brett Kavanaugh and his colleagues are unlikely to allow those laws to stand.

With Kavanaugh’s concurrence on the transgender military ban, the Court has discarded even the pretense of being a genuinely non-partisan branch of government. Despite its historic role in advancing lesbian and gay rights, the Kennedy Court was, overall, quite conservative. An already politicized Court threw the presidential election to the Republican candidate in 2000 by aborting the vote count in Florida. In 2010, it upheld unlimited dark money in politics under the dubious theory that corporations are entitled to free speech. In 2013, it gutted the Voting Rights Act by arguing, with farcically minimal evidence, that racial discrimination in voting is largely a thing of the past.

What’s stunning about last week’s transgender ban decision is its brazen indifference to evidence. To sustain its decision, the five conservative justices accepted the Trump administration’s assertion that transgender troops pose a risk to military readiness even though every member of the Joint Chiefs of Staff has repudiated that groundless claim. After almost two years of inclusive policy for transgender troops, Army Chief of Staff Mark Milley testified in April that there had been “precisely zero” problems as a result. Kavanaugh appears to have fallen in line with his colleagues in reducing the Court to a fact-free zone, little more than a political operation.

A Court that ignores evidence and precedent to advance a partisan agenda is poised to do a lot of damage quickly. Having dealt a serious blow to LGBTQ equality, conservative justices will have a chance to quietly inflict a near fatal blow to Roe v Wade this month. Despite the risk of backsliding and even disaster on almost every issue progressives care about, the Court’s role in cementing the GOP’s consolidation of power can be hard to see. The Democrats’ capacity to win elections creates the illusion of gaining real power, and few of us seem ready to accept that democratic norms and indeed democracy itself, may be on the brink of collapse. The new Supreme Court, aware of the damage to its legitimacy wrought by fierce partisanship and the harrowing Kavanaugh confirmation, may work to perpetuate that denialism: it could strive to appear reasonable by issuing a few moderate decisions or otherwise laying low to project a sense of moderation—before resuming the blatant partisanship that it seems destined to advance.

Whether because of the psychology of denial, or faith in the resilience of political institutions, few Democrats have engaged in open conversation about what may be the last chance to prevent the Court from ensuring long-term, single-party control. Hard-headed realism requires that that discussion begin now.

Fortunately, an agenda to rescue our imperiled democracy is fairly straightforward, if not politically easy to achieve. If Democrats control the White House and Congress after the 2020 elections, they should modify Senate rules allowing minorities of senators and even single senators to block legislation and appointments, and pass a law adding justices to the Supreme Court.

Dramatic steps such as modifying Senate rules and expanding courts may seem draconian or risky. They could escalate a dangerous upending of norms and come back to haunt Democrats when they’re out of power. But even if we set aside questions surrounding the legitimacy of the 2000 election, the GOP Senate’s refusal to give President Obama’s Supreme Court nominee so much as a hearing, and the fact that the current judiciary has been shaped by two presidents who lost the popular vote, one of whom engaged in criminal conspiracies to cheat in his own election, add up to unprecedented affronts to the democratic process. No rule requires that these things be deemed unconstitutional or formally illegitimate for the American people to decide they’ve had enough—and to demand extraordinary steps to right these wrongs.

Aaron Belkin is Professor of Political Science at San Francisco State University and Director of Pack the Courts, an initiative urging Democrats to expand federal courts.

Sean McElwee is a researcher and writer based in New York City. He is co-Founder of Data for Progress and Director of Research and Polling for Pack the Courts.