The Washington PostDemocracy Dies in Darkness

Opinion How aggressively should liberals attack the Supreme Court?

Abortion rights advocates march past the Supreme Court in Washington on May 14. (Craig Hudson for The Washington Post)

At any moment, the Supreme Court could hand down decisions stating that women have no constitutional right to an abortion, that states are severely restricted in how they can regulate guns amid mounting carnage, and that the Environmental Protection Agency has limited authority to regulate greenhouse gas emissions in service of securing a habitable planet.

If any liberals still don’t grasp what a threat the court poses to the things they value and the national future they aspire to, surely they will before the court’s term ends in a few weeks.

Which is why a debate is heating up on the left about how to communicate with the public about the court’s radicalization and what should be done about it. Grist for this discussion comes from the group Take Back the Court, which has released a new memo suggesting that liberals and Democrats should frontally attack the court as a kind of cancer on democracy.

The memo argues for messaging that depicts the court as fundamentally rigged by Republican tactics such as the swiping of Merrick Garland’s seat. It suggests emphasizing how this rigging is exacerbating the counter-majoritarian features in our system, both by empowering a right-wing court majority to enact its policy preferences by speciously striking down legislation and by enabling the court to green-light voter suppression and other antidemocratic GOP state laws.

To buttress this case, Take Back the Court commissioned polling that tests such messaging, finding that it resonates particularly well with voters in the coalition that elected Joe Biden president.

In the debate over how to approach the court’s radicalization, groups such as Take Back the Court argue for ambitious overhauls like expanding the number of justices. But mainstream Democrats and establishment liberals have refrained, preferring solutions such as term limits for justices.

The idea of an aggressive attack on the court as a fundamentally damaging force in our politics might push establishment liberal institutions in a direction that makes them uncomfortable.

It entails making a case to the public that the court doesn’t deserve to be treated as a good-faith institutional actor that — despite being fought over by the parties — is still ultimately devoted to a good-faith rendering of the law. It means telling the public that the court has been politicized to an irredeemable degree.

Some of the court’s pending decisions will have truly transformative effects. Dobbs v. Jackson Women’s Health Organization might become as familiar to Americans as Brown v. Board of Education or Roe v. Wade, the decision it will likely overturn, thus ending the right to abortion.

The second case, concerning gun regulations in New York state, will probably strike down a raft of state gun regulations, essentially pushing blue states toward the gun free-for-all that now characterizes the deepest red states. The third case, a challenge to the Environmental Protection Agency’s authority, could cripple the agency’s ability to address the climate crisis.

These decisions provide an occasion to amplify the case that the court is irredeemably politicized, say those urging this approach.

“The court itself should be a primary focus of progressive reaction to these decisions,” Jamison Foser, an adviser to Take Back the Court, told us, noting that the conservative justices "are political actors, and should be treated as such.”

This strategy also rests on the idea that voters deserve blunt truths about the counter-majoritarian rule the court is imposing, and that Democratic-aligned voters in particular will be energized if lawmakers level with them about it.

Voters in the Biden coalition, says Foser, are “receptive" to the critique that the court is "imposing an unpopular right-wing agenda on the nation.”

In an interesting twist, this approach could also bridge other left-liberal divides. While some groups have urged Democrats to embrace court expansion, other critics argue that the correct response to Republican court-seizure is to limit the court’s power.

Yale University political theorist Samuel Moyn, for instance, has argued for the goal of reducing the court’s intrusion on the elected branches. Moyn suggests legislative reforms limiting the court’s jurisdiction, requiring judicial supermajorities to overturn laws and enabling legislative overrides of rulings. More court expansion, he says, could legitimize the court’s institutional power over legislative policymaking, escalating the fight to control it as a kind of “superweapon.”

The point, though, is that there’s common ground between those camps around the idea that the court has become a destructive force.

“The institution is broken and needs to be fixed,” Moyn told us, noting that all left-leaning critics of the court agree that “the problem is systemic and structural.” He added: “There’s a chance to make this a unifying message.”

In every election, the right unites around the idea that control of the court is key to winning the struggle over our country’s future. Yet we haven’t heard many Democrats make that case to their voters. Few are saying, for instance, that if Republicans capture the Senate, the next time there’s a vacancy, President Biden’s nominee will meet precisely the fate Garland did.

And few, if any, Democrats are making an even longer-term argument: If you think the 6-to-3 conservative supermajority on the court is undertaking a radical legal transformation, just wait until that majority is 7 to 2.