The Washington PostDemocracy Dies in Darkness

Opinion There is only one way to rein in Republican judges: Shaming them.

The Supreme Court justices in Washington on Oct. 7, 2022. (Evelyn Hockstein/Reuters)
7 min

The confirmation of several of President Biden’s nominees for district and circuit judgeships has now put the total number of federal judges that he has appointed at over 100. Under Biden, the Senate is confirming judges at a faster pace than it did under Presidents Donald Trump or Barack Obama, an achievement Democratic officials are celebrating.

But these appointments don’t come close to addressing the problem: America’s judiciary is dominated by conservatives issuing an endless stream of rulings that help corporations, the rich and the bigoted while hurting working-class people, women and minorities in particular. Biden’s lower-court appointees must follow the precedents set by the Republican-dominated U.S. Supreme Court or their rulings will be overturned. Meanwhile, the high court usually allows very-right-wing opinions issued by lower-level conservative judges to remain in place.

So at least in the short term, there is only one real option to rein in America’s overly conservative judiciary: shame.

Democratic politicians, left-leaning activist groups, newspaper editorial boards and other influential people and institutions need to start relentlessly blasting Republican-appointed judges. A sustained campaign of condemnation isn’t going to push these judges to write liberal opinions, but it could chasten them toward more moderate ones.

Follow Perry Bacon Jr.'s opinionsFollow

There are a ton of people and institutions looking to rein in Republican-appointed judges. But many proposed reforms, while useful, are too small-bore: a code of ethics that Supreme Court justices must follow; more appointments of progressives to lower-court judgeships; limitations on the Supreme Court’s use of its so-called shadow docket. More ambitious ideas have no chance of being adopted right now: term limits for Supreme Court justices; “court-packing” that increases the number of left-leaning justices; limitations on federal judges’ ability to invalidate legislation.

With little ability to formally limit the power of conservative judges, there are only informal means left.

So when lower-court Republican-appointed judges suspended Biden’s student loan cancellation policy, the president should have immediately brought some people struggling with college debt to the White House for a news conference where both he and the college debtors would blast those judges by name (Ralph R. Erickson, L. Steven Grasz, Mark T. Pittman and Bobby E. Shepherd, all appointed by Republican presidents).

He should do the same to the Trump appointees (Kurt D. Engelhardt, Don R. Willett, Cory T. Wilson) who last year issued a ruling, which is being appealed, that would cripple the Consumer Financial Protection Bureau and the three judges who recently decided that people under restraining orders because of domestic violence accusations should have the right to buy guns. (The three judges include Wilson and Trump appointees James Ho and Reagan-appointee Edith Jones.)

There will be arguments that such high-profile criticism would put judges in physical danger. I obviously oppose violence. But judges are powerful figures setting policy — they should get as much scrutiny as elected officials. No one argues that Biden is imperiling the life of Florida Republican Rick Scott, even though the president has repeatedly named Scott while criticizing the senator’s Social Security proposals.

While the president should highlight the worst rulings, he doesn’t have time to attack them all. So there should be a high-profile Democratic politician in a safe seat (perhaps House Minority Leader Rep. Hakeem Jeffries of New York) who each week holds a news conference to slam the most extreme rulings by GOP judges.

And Senate Democrats should hold hearings on the judiciary in the mold of the Jan. 6 commission, with compelling witnesses and videos. Republican-appointed judges have been just as damaging to American democracy as Trump has been (if not more so), just in a less obvious way. That needs to be explained to the American public.

The criticism of these judges should be plain-spoken. We should end the veneer that judges are somehow separate from partisanship. So it’s important to say, “Chief Justice John G. Roberts Jr., a Republican,” not “conservative-leaning Chief Justice John G. Roberts Jr.” or “Chief Justice John G. Roberts Jr., a Republican appointee. (This is an idea from legal writer Jay Willis of the website Balls and Strikes.)

We should describe the impact of Republican judicial rulings in straightforward terms. For example, “The Republican judges are making it easier to discriminate against gay and lesbian people” (what the judges describe as protecting religious freedom).

And there is no need to wait until the rulings are issued to start the criticism. The Supreme Court seems poised to rule against affirmative action policies this summer. So, Democratic politicians should be holding events at college campuses, with a message along the lines of “I want this to be a diverse school, with sufficient numbers of Black and Latino students. Samuel A. Alito Jr., Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, John G. Roberts Jr. and Clarence Thomas, why don’t you want that, too? What’s wrong with you?”

There is a group of judges, mostly appointed by Trump, who regularly issue extreme rulings.

For example, conservative activists constantly steer cases to Texas-based Trump appointee Matthew Kacsmaryk, knowing he will always take the Republican position. People on the left should make judges such as Kacsmaryk as infamous as, say, Rep. Marjorie Taylor Greene (R). After all, these judges have way more power than the Georgia congresswoman does.

These tactics would (1) drive news coverage and therefore public attention to the right-wing tendencies of Republican-appointed judges; (2) bring particular focus to the worst rulings and judges; (3) establish a clear case for judicial reform.

But the real goal is to make Republican judges less conservative in their rulings right now. Why would that happen? Because many judges care deeply about their reputations. They want to be seen more as umpires than politicians. I’m not guessing — several Republican-appointed Supreme Court justices have complained about being cast as Republican partisans.

This kind of shaming has already been shown to work. After intense criticism from liberals about the court’s usage of the shadow docket to issue conservative rulings without even hearing arguments, the court has stopped using the practice as often. Many of the opinions of Kavanaugh, who is now the court’s swing justice, seem almost intentionally written to minimize public blowback. He seems to want to be respected by people across the political spectrum as a fair-minded judge. People on the left need to make clear he won’t get that respect if all he does is issue opinions that align with what the Republican Party wants.

I understand these judges just struck down Roe v. Wade. I am not expecting conservative judges to become moderates. Could this strategy backfire and push them to be even more right-wing? I don’t really find that believable. They just overturned Roe — it’s not clear they can get much worse.

In their thinking about the judiciary, Democrats should be more like Trump. While in office, Trump criticized a ruling he didn’t like by casting the judge who wrote it as an “Obama judge.” Roberts then issued a sanctimonious statement, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”

But at least right now, Trump is right. Roberts and his colleagues are acting like Republicans, not judges — and Democrats should say that loudly and often.