While the election is dominated by talk of the economy and Mitt Romney’s latest foreign policy blunder, don’t lose sight of one important fact: Perhaps nothing will have a bigger impact on the United States’ future than the Supreme Court. And with four justices above the age of 70, the next president of the United States could have enormous power to shape the court for generations to come. Age is not, as Playboy mogul Hugh Hefner has suggested, just a number.
In a government paralyzed by partisan gridlock on the most important matters of the day, the Supreme Court has become what Bill Moyers calls “The Decider.” A majority of the justices has taken a far right turn in its decisions.
This extremism has a history. In 1971, Lewis Powell, then a corporate lawyer and soon to be a Supreme Court justice, wrote a memo at the request of the U.S. Chamber of Commerce, urging it to push for an activist, pro-business court that would rubber-stamp its agenda. Powell’s memo laid the groundwork for a right-wing rise in all areas of public life, including law firms, think tanks, campus organizations and media outlets. The 1987 failed Supreme Court nomination of right-wing ideologue Robert Bork was, in hindsight, only a setback in the movement to push the court toward the right. Extremists including Clarence Thomas and Samuel Alito would eventually be confirmed.
For much of the past 40 years, even as the court has contributed to growing inequality and the enrichment of the 1 percent at the expense of the 99 percent, public opinion has largely and consistently favored the justices. But today, after a series of 5 to 4 decisions in high-profile cases such as Bush v. Gore, Citizens United and the Affordable Care Act, 75 percent of Americans believe that the justices’ decisions are influenced by their personal or political views.
They’re right. The court headed by right-wing Chief Justice John Roberts has suppressed the ability to organize through labor unions. It has weakened the right to bring class-action lawsuits. It has impeded ordinary people’s access to courts. It has given corporations more power — and personhood — to inflict their will on Americans. It has shielded financial institutions from accountability. It even threatened the Constitution’s commerce clause in its health-care decision, putting a range of social programs and protections at risk.
Unless progressives find a new way forward, the juris-corporatists will only strengthen their grip on our courts. As Alliance for Justice President Nan Aron outlines in this week’s issue of the Nation (which is devoted to the 1 percent court), progressives cannot sit on the sidelines. Indeed, they should take a page from the Powell playbook, adopting “a new way of thinking about the courts, new tactics for shaping the public debate, and a whole lots more energy from the left.”
Progressives should focus on “building the bench for the bench” with a pipeline of progressive legal talent ready to fill judicial appointments — and a Senate that understands the importance of those candidates. And just as conservatives have used the courts to mobilize their supporters, progressives must make this a galvanizing issue. This means educating the public about how Supreme Court decisions impact almost every aspect of their lives. Moreover, progressives must reshape the debate by exposing the hypocrisy of a right wing that criticizes so-called “activist judges” on the left while aggressively pushing justices who legislate from the bench.
In the four decades since the Powell memo, the right has understood and used the power of the courts to shape U.S. politics, U.S. policies and the U.S. economy, while progressives simply haven’t demonstrated the same intensity on this issue.
In this election year, with so much at stake, there is an enormous opportunity to close that intensity gap. Unless the Supreme Court becomes a central issue in this election, progressives are at risk of losing everything they care about, fought for and won.
This is no exaggeration. Let’s not forget that Mitt Romney has resurrected Bork as his chief judicial adviser. This is a man who would overturn Roe v. Wade, who doesn’t think the equal protection clause applies to women, who consistently favors corporations over citizens, who opposes voting rights. He originally opposed the 1964 Civil Rights Act! As Sen. Edward Kennedy said before the Senate rejected the nomination, in Bork’s America, “the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are at the heart of our democracy.”
With Mitt Romney in the White House, Bork would be in a position to reverse the progressthe United States has made to expand its democracy.
In this election, Americans have a choice that is bigger than the next four years. They will choose between those who would turn the clock back economically, culturally and socially to the days before the New Deal, or those who want to build a more just, fair and diverse 21st-century society.