When Supreme Court Justice Anthony M. Kennedy announced his retirement, Sen. Elizabeth Warren (D-Mass.) quickly tweeted: “This is the fight of our lives.”
She’s right. But how will the fight be defined, and how can it be won?
With Republicans in control of the Senate, the odds favor anyone President Trump picks to fill Kennedy’s seat. But as the mass mobilization to preserve the Affordable Care Act demonstrated, progressives can win battles in the Senate if Democrats hold together, and if a handful of Republicans are convinced that going along with their party will have high political and substantive costs. There is no choice but to mobilize.
Supporters of abortion rights were among the earliest to speak out forcefully against a right-wing nomination from Trump — and his list of possible choices includes only right-wingers. The abortion question takes on a special urgency because Kennedy, while deeply conservative in so many areas, was a relative moderate on social issues. A harder-line conservative could join with the other four conservatives on the court to overturn or substantially roll back Roe v. Wade .
Moderate and liberal voters who had not weighed court appointments heavily in their ballot-box decisions may do so now that the threat to Roe is not theoretical but real. This could also further boost turnout among women strongly opposed to Trump, whom Democrats are counting on this November.
More immediately, Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) will be crucial to stopping a Trump nominee, or at least delaying a vote until after the election. Both support abortion rights, and both played important roles in saving the ACA. The pressure on them will be immense.
But for Collins and Murkowski to make a difference, Democratic senators will have to stay united, and opposing a Trump pick could be difficult for those on the ballot this fall in pro-Trump states. That’s particularly true of three who voted to confirm Justice Neil M. Gorsuch and who, along with Collins and Murkowski, met with Trump last week: Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin III of West Virginia.
They need to be prepared to make a broader argument about how the lives of the people they represent will be affected by the radical nature of conservative jurisprudence.
It would use states’ rights and other doctrines to invalidate environmental, economic and social legislation. With abortion often at the forefront, it’s easy to overlook the judicial right’s goal of bringing the country back to the pre-New Deal days. That’s when justices relied on strict interpretations of property and contract rights — and a narrow view of federal authority — to strike down laws on wages, hours and other forms of business regulation.
As Duke University law professor Jedediah Purdy noted in the New York Times, “What is at stake is whether American democracy can overcome the new Gilded Age of inequality and insecurity.”
Senators such as Donnelly, Heitkamp and Manchin need to argue to those who are ambivalent about abortion, or even against it, that right-wing judges would sanction a plutocratic government with little capacity to defend their interests.
In framing their appeal, they might revisit a series of speeches underscoring the threat of conservative legal thinking given by former vice president Joe Biden in 2000, when he was a senator.
“The Supreme Court, in case after case, is freely imposing its own view of sound public policy — not constitutional law, but public policy,” Biden told me at the time. “What is at issue here is a question of power, whether power will be exercised by an insulated judiciary or by the elected representatives of the people.”
Speaking on the Senate floor, Biden acknowledged that the phrase “judicial activism” has “often been used by conservatives to criticize liberal judges.” But “the shoe is plainly on the other foot: It is now conservative judges who are supplanting the judgment of the people’s representatives and substituting their own.”
Sen. Chris Murphy (D-Conn.) showed how this larger point can be made in his initial response to Kennedy’s retirement. “The existing Court’s assault on voting rights, collective bargaining and religious liberty is awful enough — just imagine how bad working people will have it if another right-wing justice joins the Court.” He warned of the court “taking a vicious, anti-worker, anti-women, anti-LGBT, anti-civil rights turn.”
The future of abortion rights is central to the coming battle. But so are civil rights, corporate power and our democratic capacity to correct social injustices. Conservatives should not be allowed to distract attention from the aspects of their agenda that would horrify even many who voted for Donald Trump.