CONSERVATIVES ARE WINNING COURT DEBATE
Democrats, having lost the Supreme Court, are increasingly turning their attention to putting liberal judges on state courts. The way they are doing it shows they have lost the debate about the role of courts in our democracy, too.
Over the past two generations, conservatives developed a comprehensive strategy, including politically powerful rhetoric, for bringing the federal courts closer to their understanding of the enterprise of judging. Judges shouldn’t rewrite the law in the guise of interpreting it, they said; judges should be umpires, not players taking a turn at bat. Conservatives warned against letting judges have wide leeway to fill in the meaning of apparently vague language, instead urging them to be constrained by what the informed public understood the words of the law meant when it was ratified.
This vision of the judicial role has drawn intense criticism, especially in the legal academy, where conservatives remain a small minority. The most recent high-profile political critique came from President Barack Obama, who often said judges should rule with “empathy.”
But Obama’s liberalism didn’t take. During their confirmation hearings, the justices he nominated to the Supreme Court, Sonia Sotomayor and Elena Kagan, explicitly rejected the empathy standard — even though they were testifying before a Democratic-controlled Senate. Kagan went so far as to say that, in a sense, “we are all originalists.” Justice Ketanji Brown Jackson made similar remarks during her hearings.
Progressives have not just failed to popularize an alternative to judicial conservatism; they have barely even come up with one. No justice in history had a following as large as Ruth Bader Ginsburg’s, but she left behind no school of thought in the way Justice Antonin Scalia did.
When they dissent from conservative decisions, the liberal justices are more likely to accuse the majority of inconsistently applying originalism than they are to dispute it. Or they will cite precedents from the earlier liberal era on the Supreme Court, a tactic that will grow less useful the longer today’s conservative supermajority is in place.
The new effort by Democrats at the state level is similarly defensive. The New York Times reports groups are setting up a new fund to win governors’ races by highlighting their power to make appointments to the state courts. But none of the Democrats quoted in the Times story say anything about advancing progressive values from the bench. They speak only of upholding “the rule of law.”
Judges backed by Democrats are, by and large, going to deliver policy results that Democratic politicians like, just as Republican appointees do for Republican politicians. The most charitable way of putting it is that each side has a systematically different view of what “the rule of law” means. That’s true whether judges are appointed by partisan officials or win elections that are effectively partisan.
Today’s liberal justices are less adventuresome in their legal reasoning than their predecessors were, limiting the scope of their activism. The politics of confirmation hearings have changed, too, with “originalism” no longer used as a marker for extremism, as it once was.
Winning the public debate has made Democrats more cautious and Republicans bolder about who they nominate. It’s one of the reasons conservatives have a supermajority on the Supreme Court — and why progressives have been reduced to seeking solace on state courts.