Should the nation be lucky—and smart—enough to elect a Democratic president and Senate majority in 2020, that president and that Senate are going to have to think broadly and creatively and patriotically about how to restore balance to the third branch of government. Stories from the New York Times and the Washington Post drive that home.
The New York Times details the extremism of Supreme Court Justice Clarence Thomas and his near-total disregard for precedent when it comes to issues the far Right cares about. Reporter Adam Liptak starts his review of Thomas' record looking at "three opinions in eight days that took issue with some of the court’s most prominent precedents." One of those is in regard to the First Amendment, another abortion, the third the Sixth Amendment and poor people's right to legal representation in criminal cases. Thomas wrote that the 1964 decision New York Times v. Sullivan and subsequent rulings, which provided the press with broad protections against libel suits from public officials, "were policy-driven decisions masquerading as constitutional law." Roe v. Wade, he argued, was "notoriously incorrect," and as for the Sixth Amendment, he said criminal defendants have only the right to hire a lawyer, if they can afford one.
This isn't new for Thomas. Liptak cites a review by Stephen L. Wasby, an emeritus professor of political science at the University at Albany, finding 250 cases written or co-written by Thomas during his Supreme Court tenure "seriously questioning precedents, calling for their reconsideration or suggesting that they be overruled." About a third of those were related to criminal justice, but he also focused on "free speech, religion, voting, the separation of powers and federalism." This is the "originalist" concept taken to the extreme, making him the model justice for the Federalist Society, where he frequently speaks.
The Federalist Society in turn is where Mitch McConnell and Donald Trump are finding their preferred candidates. Thanks to McConnell's concerted efforts to keep President Barack Obama from filling judicial seats, Trump has an unprecedented number of vacancies to fill—roughly 40 percent of the federal judiciary could end up with Trump's stamp on it. That's changing the face of some of the most important courts in the land, as Ben Feuer, chairman of the California Appellate Law Group LLP and a former clerk for the 9th Circuit Court of Appeals, writes in the Washington Post. Specifically, Trump has four nominees pending for the 9th Circuit, which has been a key liberal court for decades. There's a fifth vacancy pending. He'll end up tipping that court to nearly 50-50 liberal-conservative. Except not "conservative" exactly, more like Federalist Society-approved extremist. Young extremists, with years ahead of them of what are likely to be lifetime appointments.
This is where the creativity Democrats will need comes in. To date, Democrats have complained about the judiciary and talked about the importance of the Supreme Court in abstract in campaigns, but they haven't done the necessary work of relating the courts to daily life for voters. They're going to have to start talking about it, and talking about it a lot. They're also going to have to be willing to do something about it.
That could include precedented action, like the expansion of the 9th Circuit in the Omnibus Judgeship Act of 1978, following Watergate. Depending on the crimes and misdemeanors of Trump, it could mean considering impeaching judges he got confirmed as the illegitimate fruit of an illegitimate president. It should mean finally prioritizing legislation to include the Supreme Court in the judicial code of conduct. Because, yes, the Supreme Court is exempted from the code of ethics all other federal judges are bound by. That could in turn make it easier to at the very least curb the kind of extracurricular political activities Thomas and fellow conservatives take on.
Fighting to reclaim the courts from the extremists is going to be essential for any kind of grand vision Democrats have on the environment, on health care, on voting and civil rights, on basically every existential issue facing us. That's going to take courage and commitment, and it needed to start yesterday.