Where’s the Fire? In Short, the Courts.
Enabled by Senate accomplices like Senator Mitch McConnell, the Supreme Court and the lower federal court and state court judges for whom they set the tone — and legal agenda — is full-speed ahead
Republicans have abandoned any pretense of civility, decorum, or good faith in favor of power. There are few examples of power grabs more egregious than that after Justice Antonin Scalia died in February 2016 — while staying rent-free at a lodge owned by an individual with interests before the Court, it must be noted.
Republicans kept that seat on the Supreme Court open to the detriment of the institutions’s ability to function. Their claim: With the presidential election less than a year away, voters should decide the fate of the seat. Justice Neil Gorsuch was confirmed in April 2017. The same cast of characters put the lie to their tactics just a few years later. After Justice Ruth Bader Ginsburg died in September 2020, Republicans waited less than a month to confirm Justice Amy Coney Barrett — only days before Trump lost the 2020 election.
None of this is surprising or remotely new.
Harken back a decade or so. Even before they knew who might next be occupying the Oval Office, Senate Republicans began zealously blocking President Barack Obama’s judicial nominees during his second term in hopes they could be filled by a conservative successor. Their shenanigans weren’t just uncouth.
Holding seats open for political gain took a toll on our justice system, hobbling a judiciary already heavily backlogged thanks to Republicans’ refusal to expand the lower courts. NB: Until the 1990s, Congress regularly expanded the number of federal judgeships to keep up with population growth and caseloads. It was the GOP that ended that common-sense practice.
But back to 2017.
With the aid of dark money operators like Leonard Leo of the Federalist Society, whose efforts extend from law schools to the White House, Donald Trump picked and fast-tracked extreme anti-LGBTQ+ judicial nominees to fill the vacancies Republicans held open for that purpose.
Just how bad were Trump’s picks?
Texas’s Jeff Mateer said transgender children were evidence of “Satan’s plan” and same-sex marriage would lead to bestiality. Mateer didn’t make it to the federal bench, but 234 other Trump nominees did and now hold lifetime appointments. That figure represents more than a quarter of the 890 federal judgeships. Lambda Legal found 4 in 10 of Trump’s judges had a record of anti-LGBTQ actions or statements.
The Fragility of Civil Rights Jurisprudence
The most prominent examples of the threat this Court poses to civil rights — not to neglect voting rights and other core issues — may be its ongoing attacks on LGBTQ+ rights. And within that sphere, marriage equality is often first to mind. That’s part of the problem: After a multi-decade, multi-pronged legal effort to win marriage equality at the Supreme Court that included internecine warfare, few people want to — or can — entertain the possibility that our right to marriage could vanish overnight.
Newsflash: That’s just what will happen if Trump’s judges get their way. Winning Obergefell legalized same-sex marriage and marriage only — not civil rights and recognition for queer and trans people broadly. Losing Obergefell, however, would jeopardize every one of the still limited rights LGBTQ+ Americans enjoy.
Dignity as the Foundation for Civil Rights
Backing up, Obergefell, like the major gay rights victories that preceded it at the Supreme Court, is predicated on the concept of human dignity thanks to former Justice Anthony Kennedy, who wrote most of the Court’s major gay rights decisions. But that concept isn’t exclusively or even primarily about LGBTQ+ rights.
The dignity right, introduced by Republican-appointed Justice John Harlan in 1971, has its roots in not just the Fifth and the Fourteenth Amendments but the First Amendment. It derives from the better-known, tip-of-the-tongue rights to free expression, liberty, and privacy. This concept of dignity is what protects Americans’ right to autonomy in making our most personal decisions, from what kind of contraception we use and where we get it to whom we have sex with or marry.
More disastrous than the Court’s campaign to end any one specific right is its animus toward dignity. Exhibit A? The Court’s rush to overturn Roe v. Wade. Dignity is a foundation for both equality and autonomy — full stop. That’s why it’s vital to civil rights and also why, even before joining the Court, Justice Neil Gorsuch wrote an entire book, as well as a few snarky asides in judicial opinions, making clear his hostility to the dignity right.
The case that overturned 1973’s Roe, Dobbs, is just the loudest of the Court’s opening salvos in its war on dignity.
Substantive Due Process — Bear with Me
The Supreme Court has relied on a legal concept by the name of substantive due process for more than 100 years. Sounds wonky, but it’s basic: Substantive due process is the term we use to acknowledge that though the Founders couldn’t predict every potential scenario in which the Constitution might need be invoked, the document was always intended to protect our fundamental rights from government interference. These unenumerated rights fall into the “penumbra,” or shadow, of the Bill of Rights, under familiar terms our Founders did enumerate — like life and liberty.
In sum, substantive due process, which Gorsuch claims may not even have “a home” in the Constitution, protects rights closely connected to life, liberty, and property protected by the Fifth and Fourteenth Amendments but not enumerated in the Bill of Rights — the right to contract, use contraception, and, yes, marry. These rights reside in “the penumbra” of the Bill of Rights. So, too, does the dignity right.
The Roberts’ Court endgame is eliminating substantive due process altogether.
Congress can’t answer this attack on the foundation of civil rights law with legislation, trying to guarantee rights one by one — just as the Founders couldn’t produce a complete list of duh-level rights that must be protected by our Bill of Rights. The feel-good Respect for Marriage Act of 2022, for example, which legalized same-sex and interracial marriage, does nothing to create broader protections for LGBTQ+ people — nor would it save marriage equality if it came down to a battle between the Court and Congress.
The only option to save substantive due process short of remaking the Supreme Court? A constitutional amendment. But that would require a two-thirds majority in both houses — a non-starter.
The Extent of the Crisis at the Courts
Many of Trump’s lower court judges are even more extreme than Justices Clarence Thomas and Samuel Alito, the top Court’s top conservatives. It’s these lower court judges who are best poised to cause immediate devastation, both with the rulings that affect their jurisdictions and those that result in national injunctions — think mifepristone.
These lower court judges are teeing up cases for the Supreme Court, giving the justices opportunities to hack away at the jurisprudence on which protections are founded. One striking example: The scheme to bring down Chevron, a 40-year old administrative law precedent that allowed agencies to rely on experts to protect consumers from exploitation and dangerous products, patients from unsafe medications and medical devices, and all of us from environmental toxins and pollutants. As of June, thanks to the Roberts Court, judges can now substitute their biases for experts’ knowledge and experience.
Organizations like Alliance Defending Freedom collectively command thousands of attorneys dedicated to bringing test cases and impact litigation in the lower courts to further their extreme far-right agenda. These front-line activists benefit enormously from the prerogative to judge-shop in, for example, single-judge districts. The threat has inspired much-needed legislation intended to end judge-shopping.
Nor are the risks these extreme judges pose limited to eroding established rights. The overturning of Roe v. Wade marked, as Dobbs lawyer Alexia Korberg notes, “the first time in the history of this nation that a right was formally taken away from ‘We the People,’ for whom … the Constitution exists. And although the United States has a shameful legacy of entire classes of people not having rights in the first place, and of people having rights on the books but not in practice, never before has the Supreme Court formally revoked a right from us.”
The path forward, politically and morally, is to proactively define the core issue of human dignity — and intertwined rights of equality, autonomy, and privacy. We must do so in concrete terms: a child’s mental health, a partner’s right to visit their spouse in the hospital, and the opportunity to create a family.
What Next, RPBP?
Courts matter. At all levels. Members of the public and candidates alike must name and push back against the interrelated legal threats outlined above and the implications for women, all people who can become pregnant, BIPOC, gay, queer, and trans people as well as members of religious minorities and others.
In this, more state and, yes, local legal activism is needed. Tracking petitions, appeals, and rulings, already a Sisyphean task, is necessary but not sufficient. Example: When it comes to SCOTUS, it is necessary not just to scan the docket for grants and scrutinize rulings but follow the consequences. How some cities and states have embraced the right to criminalize homelessness created by this summer’s City of Grants Pass v. Johnson is a prime example.
Best case scenario, civil rights advocates will be ready when an opportunity to challenge bad law arises. Worst case? Thorough documentation to support the organizing necessary to mitigate the harms done.
All is not lost. We have a window of opportunity to shift discourse on the Court — one entirely of their own making. There’s Dobbs, of course, which contravened the justices’ representations before the Senate during confirmation hearings and has not just endangered but actually killed women and infants nationwide.
expands on the bleak post-Dobbs landscape and data-gathering (and reporting) foibles in her own Substack. @valentiThe Court followed up with Trump v. United States, in which Trump’s justices awarded the President extravagant power to abuse that role. They dictated presumptive immunity for a host of actions and absolute immunity for others, creating an expansive prerogative to committed crimes in office. For those keeping count, Trump has been convicted of 34 as a result of his time in office — so far.
The best primer comes from Yale’s
, whose Freedom Academy on Substack is not to be missed:
The Court’s overt politicization, unending revelations of massive ethics violations, and signs of institutional implosion — like the inability to keep draft opinions under wraps — have driven unprecedented public attention and scrutiny to SCOTUS. It will only increase as the Court continues down this path. Example: The Court recently telegraphed its eagerness to overturn Bostock, decided by almost this exact Court just four years ago. That decision, arguably already overturned, followed the long-established lead of the EEOC (at last) and recognized sexual orientation and gender identity discrimination as sex discrimination.
Where are ‘We the People’?
The Roberts Court itself has created a window of opportunity to shift the discourse around the Supreme Court —to reach not just legislators but the public.
An Economist/YouGov poll conducted September 1-3 found just 15 percent of adult U.S. citizens didn’t have an opinion on the Supreme Court. A whopping 50 percent disapprove and just 35 percent approve of the Court. The net difference between men and women? Twelve points in the case of approval, with men approving at a rate of 42 percent and women at just 30 percent. A majority of women (53 percent) disapprove of the Court with just 47 percent of men approving.
You want a game plan? Coming right up.
Step one: Expose and condemn the overarching/underlying ideological bent the majority now openly follows in media, on social media, in conversation, and in the voting booth. Vote for the candidates who won’t expand the super-majority that’s already done so much harm to our people and our laws or back other judicial candidates of their ilk.
Democrats and supporters of civil rights need to get comfortable, fast, connecting with voters to talk about, inter alia, the dignity right as a value that’s not just the foundation for key civil rights rulings but at the core of who we are. From that recognition, the need to elect and appoint judges who will uphold that long-established precedent follows naturally.
Step two: Take the fight to the states. Should Trump win and his Court continue boring through constitutional bulwarks like loose shale, state legislatures and governors will be liberty and democracy’s most essential allies. Follow their campaigns in your counties, states, and neighboring jurisdictions. Enter data, make calls, knock on doors.
Step three: Support preemptive protections. California and Virginia, for example, are addressing the likely demise of Obergefell with measures such as California's Marriage Equality proposition and Virginia's marriage equality law, led by Delegate Rozia Henson, the first openly gay Black man in the Virginia General Assembly. While imperfect — Virginia’s bill exempts religious officials from having to perform marriages to which they object under the First Amendment — the message these bills send, as well as what protections they do achieve, matter a great deal.
In conclusion, better to stay ready than get ready.