Can Democrats Change The ‘Roberts Five’ Majority?

United States Supreme Court, Washington, D.C.

If Democrats hope to undo the conservative lean of the United States Supreme Court it won’t be as simple as Republicans had it in 2016.

Many said the 2016 general election was as much about the Supreme Court as it was about electing a president. It was a unique historical opportunity, where appointing two associate justices could impact the court for decades, with Iowa’s senior senator Chuck Grassley playing a key role as chairman of the Senate Judiciary Committee.

With the 2005 appointment of Chief Justice John Roberts and two recent associate justice appointments, Neil Gorsuch and Brett Kavanaugh, Republicans have remade the high court in a way that consistently delivers opinions in favor of their interests.

Senator Sheldon Whitehouse (D-RI) wrote about the Supreme Court and the “Roberts Five” majority in an April Issue Brief for the American Constitution Society:

It turns out that Republican appointees to the Supreme Court have, with remarkable consistency, delivered rulings that advantage the big corporate and special interests that are, in turn, the political lifeblood of the Republican Party. Several of these decisions have been particularly flagrant and notorious: Citizens United v. FEC, Shelby County v. Holder, and Janus v. AFCME. But there are many. Under Chief Justice Roberts’ tenure through the end of October Term 2017-2018, Republican appointees have delivered partisan rulings not three or four times, not even a dozen or two dozen times, but 73 times. Seventy-three decisions favored Republican interests, with no Democratic appointee joining the majority. On the way to this judicial romp, the “Roberts Five” were stunningly cavalier with any doctrine, precedent, or congressional finding that got in their way.

These cases fall into four categories according to Whitehouse.

(1) controlling the political process to benefit conservative candidates and policies;
(2) protecting corporations from liability and letting polluters pollute;
(3) restricting civil rights and condoning discrimination;
(4) advancing a far-right social agenda.

Even if a Democratic president returns to the White House in 2021, something far from assured, there may be only two opportunities to appoint associate justices when octogenarians Ruth Bader Ginsberg and Stephen Breyer die, retire or otherwise move on. Such appointments wouldn’t impact the ideological balance of the high court. In fact, if justice were blind, would there even be an ideological balance to talk about?

No amount of liberal outrage will fix this Republican-made court. What’s a Democrat to do?

First, understanding what’s taking place in the Roberts Court should be a high priority. A beginning is to read Senator Whitehouse’s article here to understand the damage done since Roberts was appointed chief justice.

Second, the Republican strategy of holding judicial appointments open until a Republican president was elected was a multi-year, long-term strategy that worked. Whether or not politicizing the court system is a good idea, one has to ask, what is the Democratic plan to change the mix of justices? There may be one. If there is, how is it actionable for rank and file voters? I’m not sure chasing third tier Democratic presidential candidates around Iowa before the caucus is a positive contribution to the effort.

Finally, Democrats must do a better job of picking their battles. Outrageous behavior is a feature, not a bug of the Trump administration and Republican legislators. There will always be an outrage as long as Trump is president, because if nothing is going on, he will gin something up. When Republicans make us feel outraged, they also maintain control of public dialogue. In order to break their hold on voters we must work differently that we have recently. It begins by de-emphasizing social media and talking directly to friends and neighbors about how to resolve the issues society faces.

It’s not a flawless approach, however, we have to do something.

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