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Don’t Despair Over The Supreme Court—Get Mad, Then Even

President Trump’s second Supreme Court nominee, Brett Kavanaugh, was bound to embody everything liberals have dreaded about Trump’s power to reshape the courts. Trump selected Kavanaugh from a list of 25 pre-approved judges movement-conservative hardliners put together to maximize right-wing judicial power. Where retiring Supreme Court Justice Anthony Kennedy ruled for corporate interests and against voting rights, Kavanaugh will rule for corporate interests and against voting rights; but where Kennedy voted decisively to uphold reproductive rights, gay rights, and affirmative action, Kavanaugh is very unlikely to follow suit.

That means enormous changes are coming to the lives of millions of vulnerable people, and from a president who lost the popular vote.

Kennedy’s retirement has been the biggest setback for liberalism since inauguration day last year, and because Kavanaugh can’t be swept out of office in an election, many liberals are tempted to despair. The court appears lost for a generation, which means that even if Democrats manage to reclaim control of government in 2020 or 2024, the whole liberal agenda will be vulnerable to judicial chicanery like at no time in a century.

So why bother?

Because the loss of the Supreme Court under these circumstances doesn’t signify permanent defeat for liberals—it illustrates anti-democratic flaws in our system of government that liberals can and must make a high priority of fixing. Liberals have been radicalized by Trump’s contempt for democratic norms, and in many cases for good reasons. If Trump were to fire Special Counsel Robert Mueller, for instance, people would rightly take to the streets. They should channel similar energy and passion into promoting a positive vision of a more democratic America, and mobilizing against the broader right-wing assault on democracy—even when it falls within “normal” bounds, like a president nominating a Supreme Court justice.


The easiest place to start is by opposing Kavanaugh on the basis, among other things, of the concept of popular sovereignty. Trump was a big majority-vote loser in 2016. He is under investigation for conspiring with a hostile intelligence service to sabotage his majority-vote winning opponent. The case that such a person should be denied the power to make his imprint on American society for decades is easy to make. Democrats can’t stop 50 committed Republicans from taking the opposite view, but by uniting against Kavanaugh, they can make Senate Majority Leader Mitch McConnell run the table, and turn every Republican in the Senate into the decisive vote to, for instance, end the right to abortion.

Looking forward, though, the list of things Democrats can commit themselves to doing to end this era of minority rule is long and accessible. And, more to the point, doing them is probably necessary to making the substantive changes liberals hope to make to the country feasible and lasting.

A conservative court might threaten a liberal agenda, but if passing liberal legislation requires 60 votes in the Senate, the liberal agenda is dead anyway. Democrats will face daunting challenges the next time they control government—to clean up Trump’s messes, and messes that predated Trump—almost all of which will overwhelm them if Republicans retain the power of the filibuster. Every Democrat should be prepared to abolish it, not just because their power to change the country depends on it, but because it will make the Senate a somewhat less antidemocratic institution than it has been in the past couple decades. Making the Senate a majority-vote institution will be a prerequisite to fulfilling promises Democrats make to their voters, in the limited time they will have to fulfill them, and reluctance to abolishing the filibuster should rightly be seen as a means of hiding from democratic accountability.

From there, Democrats can turn to the questions surrounding Trump’s legitimacy. Trump has just nominated his second justice, instead of his first, because Republicans stole a seat that President Obama (who had won re-election with a popular-vote majority) should have been allowed to fill. Neil Gorsuch’s appointment, and all of the 5-4 cases he’s decided in the past year, were spoils of that corrupt act. Democrats should be prepared to reverse the theft by adding two seats to the Supreme Court. If Special Counsel Robert Mueller finds that Trump conspired with Russian intelligence to subvert the election, it will be reasonable to argue that all of Trump’s Supreme Court appointments need to be neutralized in the same way. The point is not to pack the court arbitrarily, with equally arbitrary power grabs—what was the stolen Gorsuch seat if not an arbitrary power grab?—but to right antidemocratic wrongs, and to show that such wrongs won’t be rewarded in the long term. Democrats could in theory have packed the courts in 2009, but they would have had to stretch to find a neutral basis for doing so. That will not be the case next time Democrats come to power.

These steps would lay a foundation from which Democrats in Congress and in statehouses could confidently pass an agenda of both substantive and democratic reforms, the latter of which could include:

  • Nation-wide non-partisan redistricting;
  • Nation-wide voter-enfranchisement efforts;
  • Statehood for Washington, DC, and Puerto Rico;
  • Adopting the National Popular Vote interstate-compact in enough states so that the national popular vote winner always wins the presidency, making the electoral college a vestige;
  • Public-financing of elections, and disclosure requirements for political non-profits.

An agenda like this will come under criticism, because it will redound to Democrats’ partisan benefit in the near-term. But every item on it contains its own internal democratic logic. It stands in stark contrast to the conservative agenda of fostering Republican power by excluding people from the electorate, and stacking courts with people like Kavanaugh to enshrine voter suppression and overturn laws protecting the franchise. An agenda of minority rule begetting minority rule, through escalating, unprincipled, antidemocratic power grabs.

Trump has hastened democratic backsliding in the U.S., but he is also a symptom of it, as is the Kavanaugh nomination. It is frightening to imagine the consequences of it, and maddening to know Republicans will likely confirm him no matter how hard or cleverly Democrats fight it. But it should also be galvanizing. Today should be a reminder to liberals not that all hope is lost, but that we’re living through a moment where democracy is on the line and we have an opportunity to save it.

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