If you want to know why Republicans have come to dominate the judicial branch of government, while Democrats are reduced to offering thoughts and prayers to an 87-year-old woman battling cancer, look no further than the third night of the Democratic National Convention. If you want to understand how Mitch McConnell was able to steal a Supreme Court appointment from a Democratic president without sparking half the country into civil unrest, listen to what the Democrats told their own voters last night. If you want to know why a woman’s right to choose is overwhelmingly popular yet teetering on the brink of collapse, why the right to vote is being suppressed, why people will be forced to risk their lives to vote during a pandemic this fall, or why our children will be shot at whenever it’s “safe” enough to open schools again, behold the ongoing failure of the Democratic Party to make the courts matter to their own voters.
Last night, ahead of the nomination of Kamala Harris, the first woman of color on a major party ticket, the Democrats tackled four issues that are of critical importance to young voters in the upcoming election: gun reform, climate change, immigration, and women’s rights. On paper, it’s nearly impossible to talk seriously about any one of those issues without acknowledging the critical role the courts have to play, much less all of them. But, somehow, the Democrats found a way to ignore the 5-4 elephant in the room.
There is no gun regulation or weapons ban that survives the Republican Supreme Court. None. To talk about an assault weapons ban, as Democrats did last night, without talking about the five pro-gun absolutists currently patrolling the Supreme Court is to talk about flying without acknowledging the limitations imposed by gravity. There is no climate legislation that survives what can be called the most “pro-business” Supreme Court in American history. None. And while we’re here, it’s worth mentioning that there’s no federal program that addresses police brutality, no expansion of health care, and no voting rights protection that survives this court either. I’m not making this up: The five conservatives on the Supreme Court have struck down legislation regarding each of these issues, or refused to defend this kind of legislation when lower courts have struck down the laws, over and over again.
I literally do not know how the Democrats got through an entire section on immigration last night without mentioning the Muslim ban, or the 5-4 Supreme Court decision to uphold it. I do not know how they talked about the Deferred Action for Childhood Arrivals program, highlighted people who have been denied access to the program, and yet did not mention that the court’s decision to allow the program to continue hangs by a thread or that the Trump administration has indicated that it will violate court orders anyway. The omissions are insulting, not just to the Muslims who have been banned or the Dreamers who have been terrorized, but also to the thousands of lawyers and good people who fight the administration and descend on airports and border crossings to defend what rights immigrants still have left.
The Democrats put forward their A-team of powerhouse women: Hillary Clinton, Nancy Pelosi, and Elizabeth Warren all spoke. But only Pelosi mentioned women’s reproductive rights, and none of them talked about how courts, right now, are rolling back the right to choose all over the country.
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It’s not like Democrats don’t know what’s happening with the courts. They know. The people running this convention and this party know full well the perilous state of many of our fundamental rights. Their failure to talk about the courts represents not an oversight but a strategic decision to ignore the “boring” or “confusing” law-talking stuff in favor of political platitudes about the right side of history and the awesomesauce of Joe Biden’s beliefs.
That decision is malpractice. Don’t believe me? Watch the Republican National Convention next week. In between various white-power hours and displays of authoritarian bootlicking disguised as politics, you will hear Republicans hammer the point home that Trump has “delivered” judges and justices. Everything they talk about, whether it’s “protecting your Second Amendment rights” or “protecting traditional values,” will have an explicit tie-in to the Supreme Court.
Some person reading this is about to send me an e-mail telling me that “Republican voters care more about the Supreme Court than Democrats.” But that person is wrong. The closest we saw this country come to open revolt against the Trump administration, before we all saw George Floyd being choked to death over eight minutes and 46 seconds, came when Trump nominated and Republicans then confirmed an alleged attempted rapist to the Supreme Court. If Susan Collins loses her seat to Sara Gideon in Maine, it will be because of her decision to support Brett Kavanaugh, more than her shameful and cowardly refusal to convict the president on impeachment. There are women in this country, some of them suburban women living in swing states, who would walk through fire if you promised them the opportunity to kick Kavanaugh in the balls on the other side.
And yet we’ve heard Kavanaugh’s name precisely zero times during the Democratic National Convention. There have been no promises to conduct an investigation into the suspected crimes Trump’s FBI failed to take seriously. There has been no commitment to reinstate the 83 ethics complaints against him and see about impeaching him for lying under oath during his confirmation hearings. For the purposes of the Democrats at this convention, Kavanaugh, the least popular Supreme Court justice in modern times, does not exist.
He will be a star next week during the GOP convention. Republicans are proud of the way they helped Kavanaugh scream, lie, and bully his way into a lifetime appointment.
Republicans have legions of single-issue voters who cast their ballots purely because of the Supreme Court, because that’s what those voters have been told to do. They have been told for a generation that the way to get the things they want—whether those things are homophobia, sexism, white-minority rule in a soon-to-be majority-minority country, or the simple joys of shooting black people who run past your house—is to gain absolute control of the courts. To the extent that Democrats have fewer voters who are willing to hold their noses and vote because of the courts, it is because Democrats never put in the work of explaining how their policy goals require liberal judges to uphold them.
With the infusion of young energy into the Democratic Party, now is exactly the time when the work should be done to explain how control of all three branches is necessary to achieve progressive aims. When I talk to young people, a lot of times the only cases they’ve heard of are Roe v. Wade and Citizens United. Too many people don’t know that D.C. v. Heller created, for the first time, a personal right to gun ownership for self-defense and must be overturned to have any meaningful weapons ban. Too many people don’t know that the conservatives’ attempt to rewrite “Chevron Deference” is their way to attack any environmental regulation ever passed again. Too many people don’t know that “codifying Roe v. Wade” is useless when the name of the game is reimagining Planned Parenthood v. Casey to make abortions functionally unobtainable even if the right to have one still technically exists.
Young people don’t know all the reasons we’re losing—because the Democrats never tell them. So they think our problems stem merely from insufficiently woke politicians who are too beholden to corporate interests to make “real” change. That’s part of it, but any young Republican with a tiki torch knows that “liberal judges” won’t let them beat the snot out of a person for being different. Many young Democrats don’t know that conservative judges are the reason they can’t use their college ID to vote like they should be able to.
A Democratic convention like this is one of the reasons we suffer from asymmetrical ignorance about an entire branch of government.
Any judge Biden appoints to any court will be better for a pluralistic society than every judge Trump has appointed or will appoint in the future. That, alone, is reason enough to vote for Biden. That, alone, is reason enough to swallow whatever misgiving one may have about Biden, or any Senate candidate, and vote for Democrats straight up and down the ticket. Not a single progressive policy agenda will even be available to Democrats in 2024 should Trump get four more years to appoint conservative judges.
This is not a policy debate; it’s a civics test. And it’s one the Democrats keep failing.
