It was indeed a big deal, providing legal protections for millions of American women. And as Ron Klain, the former chief counsel to the Senate Judiciary Committee, noted last night, the act was responsible for a profound “change in the attitudes we have about domestic violence.”
But in the rush to celebrate the act, and the role the Democratic nominee for president played in passing it, participants at the convention overlooked another critical aspect of the law’s history and legacy. In 2000, in a 5-to-4 decision, the Supreme Court struck down a provision of the act that gave victims of gender-motivated crimes the opportunity to sue their attackers in federal court. The controversial provision was intended to address the difficulties that victims of domestic violence and sexual assault routinely experienced in the state-level criminal justice system. But according to the court, Congress lacked the power to enact that provision; what’s more, said then-Chief Justice William H. Rehnquist, writing for the majority, the act’s civil remedy violated principles of federalism that gave the states authority to deal with crime within their borders.
This tragic coda to the history of the Violence Against Women Act — and the court’s role in the episode — is as consequential as the landmark law itself. And yet last night, no one so much as mentioned it. This total failure to highlight the conservative court’s gutting of a potentially important civil rights remedy highlights a broader shortcoming: the Democratic National Committee’s refusal to make the courts a salient issue for Democratic voters.
Republicans have made President Trump’s success in stacking the judiciary with conservative judges central to their argument for his reelection. Even though the courts can make or break the Democratic agenda, the Democrats have failed to focus on courts, and have not articulated a plan for recalibrating the judiciary’s shift to the right.
Discussions about the Violence Against Women Act were not the only time Democrats missed an opportunity to discuss the judiciary. From the start of the convention, Democrats have highlighted two crucial issues — affordable health insurance and access to voting — with barely a nod to the courts. On Monday night, health-care advocate Ady Barkan, using a voice simulator (because he is in the advanced stages of amyotrophic lateral sclerosis), spoke poignantly of the importance of the Affordable Care Act in his life and in the lives of millions of Americans. While he noted the Trump administration’s efforts to roll back Obamacare, he did not mention the upcoming Supreme Court term, in which the court will take up yet another challenge to the Affordable Care Act — a challenge backed by the Trump administration.
Both former president Barack Obama and former first lady Michelle Obama urged viewers to get out and vote. But neither noted that a conservative-led court has been gutting voting rights protections for a decade, making voter turnout an increasingly uphill battle. A key decision came in 2013’s Shelby County v. Holder, when the court invalidated key provisions of the Voting Rights Act. And while much was made of Trump’s attacks on the U.S. Postal Service and mail-in voting, not one person mentioned the Supreme Court’s April decision that affected Wisconsin’s primary election: The court reversed a lower-court ruling that would have allowed Wisconsin election officials additional time to count mail-in ballots.
The story was the same where immigration was concerned. In a heart-wrenching testimonial, a Latino family expressed the fervent hope that a Biden administration would retain and expand the Deferred Action for Childhood Arrivals program. There was no discussion of the Supreme Court’s recent decision remanding the case back to the lower courts to determine whether the Trump administration had taken the proper steps to dismantle DACA (a move that protected the program, but perhaps only temporarily). Video montages featured stirring footage of protests that took place in airports in 2017, in opposition to the administration’s travel ban targeting Muslim countries. But no speaker discussed the travel ban — or the Supreme Court’s 5-to-4 decision upholding it.
While House Speaker Nancy Pelosi (D-Calif.) did highlight the increasingly precarious landscape for reproductive rights, she said nothing of the courts’ role in creating that landscape. And it was the same for gun control. Both activist Fred Guttenberg and former congresswoman Gabrielle Giffords emphasized the need for better gun control laws. But neither explained that, just three years before the 2011 shooting that forced Giffords to resign from Congress, a majority of the Supreme Court adopted a sweeping and historic view of the Second Amendment that has blocked the very few successful gun control policies that Democrats have been able to achieve.
The conventional wisdom is that while Republicans cast their ballots with the courts in mind, Democrats do not. And there’s some truth to that: In the 2016 election, exit polling showed President Trump winning by a substantial margin among voters who identified the Supreme Court as the “most important factor” in their decision. But the courts matter for both parties, and the Democratic Party does not even appear to be trying to make the case that electing Biden is important because he might reverse the court’s rightward shift. Although there’s language in the party platform calling for “structural court reforms” to counteract the president’s stacking of the courts, the Democrats have yet to make the case to the voters — as Republicans surely will — that the courts may play a decisive role in whether their political agenda can be enacted.
On Thursday night, 20 years after the Supreme Court invalidated a key provision of the Violence Against Women Act, the Democratic Party will nominate the act’s architect to be its candidate for president. If elected, Biden has vowed to nominate a Black woman to the Supreme Court. But the role of courts in our democracy goes beyond a single nomination. Courts are at the heart of every issue that Democrats hold dear. They have the last word on whether democratically enacted laws survive or are scuttled. They play a role in determining whether our elections are free and fair. Speeches about courts may not make for good television (though you don’t know until you try). But the courts may determine the fate of the issues at the heart and soul of the Democratic Party. As the convention concludes, and the campaign shifts into high gear, Democrats need to make the case that their “kitchen table” issues include the composition of the courts.