the law

Burn It All Down

A growing number of liberal lawyers want more than court-packing.

Photo: Al Drago/Getty Images
Photo: Al Drago/Getty Images

Christopher Kang knows the judicial nominations process as well as anyone — he spent seven years in the Obama White House getting judges through, including two Supreme Court nominations, and before that he was counsel to the Senate Judiciary Committee. What the co-founder of Demand Justice did not know about until Amy Coney Barrett’s nomination, he told me recently, was wheatpasting.

The pandemic has cramped in-person protesting, the kind of guerrilla interruptions that made headlines in Brett Kavanaugh’s nomination even before he was accused of sexual assault. So Demand Justice, which pushes Democrats to be more aggressive on the courts than Kang’s former bosses were, put up agitprop posters outside the hearing room to shame judiciary committee senators as they went in.

“Legally permitted,” Kang adds quickly.

Last week, a Demand Justice wheat paste got an unlikely signal boost. Senator Ted Cruz indignantly brandished his phone before the cameras — he’d snapped a “Supreme Superspreaders: Politics First, Health and Safety Last” poster outside the hearing — to argue that Democrats, too, were playing the dark money judicial influence game they supposedly deplored.

Kang points out that Demand Justice’s allocated $10 million, much of it going to hammer away at vulnerable senators, is being “massively outspent by the other side.” But if you were a Democrat watching the disingenuous, obfuscatory, predetermined race to confirm Barrett, why would borrowing the GOP playbook be a bad thing? It got them on a glide path to a 6-3 Supreme Court.

There is a new, defiant energy among many of the top left-leaning lawyers who once revered the courts, even expected them to save us from Trump. Some are trying to get Democrats to play judicial hardball; others are promoting the various proposals percolating to expand the courts or strip them of their power, and yet more are making deeper critiques of how the legal system rewards the powerful. Those most committed to institutional norms are suddenly talking about tearing it all down. 

It’s being mainstreamed by apostates like Kang — onetime insiders sick of what they see as unilateral disengagement. “Watching the Trump and Republican takeover of the courts has been radicalizing for me, in terms of understanding what the political power is at stake and how it has to be leveraged,” says Kang.

Christopher Kang Photo: Courtesy of Demand Justice

The rebuff of Merrick Garland started it, but it wasn’t enough. Then came the unusual discipline Trump has shown in filling the lower courts with young ideologues, and Kavanaugh raging his way to confirmation over the testimony of Christine Blasey Ford. But nothing pushed the revolt of the legal elite further than the death of Ruth Bader Ginsburg and the nomination of her opposite. Adding seats to the court is getting talked up not just in The Nation by Elie Mystal, but also by decidedly unradical Lawfare editors Quinta Jurecic and Susan Hennessey — “We have now come to believe, more in sorrow than in anger, that adding justices may be the only way to restore the institutional legitimacy of the Court,” they wrote in The Atlantic recently — and even Reagan’s solicitor general.

Practically every election cycle, legally minded Democrats decry the fact that their voters don’t care as much about the federal courts as Republicans do. “We’ve been seeing, since Kavanaugh, really, that the grassroots are getting it more,” Kang says. Witness the tide of small donor donations to Senate races that followed Ginsburg’s death. That’s the dynamic that has pressured institutionalists like Joe Biden and Chuck Schumer into ruling nothing out when it comes to the courts.

The election to shape the course of the current Supreme Court already happened — it was 2016, with one seat left open by Mitch McConnell’s partisan discipline and two Democratic appointees in their 80s. Now that liberals’ worst nightmare has happened with Ginsburg’s death, Democrats could deploy the insight conservatives long ago hit upon: It’s easier to run against the Court than to preserve the status quo, and your base might care if they lose much of what they hold dear. Or they could do nothing.

Surveying the wreckage, you might ask what took the lawyers so long. Molly Coleman has a few theories. She was one of those starry-eyed students who showed up at law school, in her case Harvard, having absorbed what she calls the “lofty views of ourselves as advancing justice. And you very quickly learn that law school is about power.”

There, the cultural veneration of the courts and judges as infallible runs deep. “Lawyers are raised to believe that lawyers are the heroes,” Christopher Jon Sprigman, a professor at NYU Law School, told me. “And the ultimate lawyer heroes are lawyers in robes.”

Coleman realized, watching her cohort, that the romantic notions of lawyers as Atticus Finch — the principle that everyone deserves legal representation and lawyers shouldn’t be judged by their client’s deeds — was being deployed on behalf of getting rich: “It’s not the person accused of a crime,” she said. “It’s Exxon Mobil.” In 2018, her work organizing against forced arbitration clauses, which among other effects let sexual harassers off the hook, led Coleman to co-found the People’s Parity Project; she’s now its executive director, overseeing multiple campus chapters.

Their work is also up against a clubby social world. Witness former Obama acting solicitor general Neal Katyal vouching for Gorsuch, Yale Law’s Amy Chua calling Kavanaugh a “champion” for women as her daughter was poised to clerk for him, and more recently, Harvard Law professor Noah Feldman devoting a Bloomberg column to saying that Coney Barrett, with whom he clerked on the Supreme Court 20 years ago, was not only “brilliant” but a “sincere, lovely person.”

“The belief in procedural fairness is coupled with a deep deference to institutions and power,” says Leah Litman, a professor at the University of Michigan and co-host of the podcast Strict Scrutiny. A former clerk for Anthony Kennedy, she’s repeatedly broken the omertà by speaking publicly about sexual harassment at the hands of one of Kennedy’s feeder judges, Kavanaugh mentor and former Ninth Circuit judge Alex Kozinski, and for more accountability for judges and lawyers generally. She’s not alone; Yale Law students recently called for Chua’s husband, Jed Rubenfeld, to be removed instead of suspended for sexual harassment, after years of a whisper network.

Litman recently decried the fact that “elite circles of the legal profession seem deeply uncomfortable with doing anything that might hold other elite lawyers accountable for their disregard of various norms or principles.” She was talking about the Trump lawyers who helped enact child separation — former deputy attorney general Rod Rosenstein has returned to Big Law and is on a speaking tour — but the same could be said for nominations and for the courts themselves.

The Supreme Court still enjoys relatively high approval ratings, and liberals in particular have tended to associate it with 20th century wins on desegregation and abortion rights, not its history of upholding slavery, eugenics, and the interests of the rich. The deferential posture towards the courts is aided is aided by certain Senate Democrats, happy to perform one-sided bipartisanship. Nowhere was this clearer than in Barrett’s hearing, where ranking Democrat Dianne Feinstein literally hugged judiciary chairman and Republican-up-for-reelection Lindsey Graham — who made it onto that superspreader poster for refusing to take a COVID-19 test — after a cloying soliloquy about how wonderfully he had handled the hearings. Near-instantly, Demand Justice was calling for Feinstein to be removed from minority leadership of the Judiciary Committee.

Feinstein is not the only senior Democrat who operates as if the good old days could return. For many liberal lawyers, who make up a good portion of Democratic politicians, fundraisers, and policymakers, politicizing the Court is something Republicans do. They also, says Ian Millhiser, author of 2015’s Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted (and my colleague at Vox Media) “have a financial interest in the notion that courts are good,” Chief Justice John Roberts has seemed to sense this reputational slippage, making surprise compromises that have often coincided with elections and blunted the angriest criticism from liberals. “It was not the best sales pitch for my book that immediately after it came out we had the most liberal term of my lifetime,” Millhiser said. After initial reluctance, he himself has argued that in the face of structural impediments and outright attacks on democracy, something has to give.

Barrett’s nomination highlights another asymmetry in the supposedly neutral legal system. It’s hard to imagine her Democratic equivalent — a committed movement soldier who Graham called “unashamedly pro-life” — being nominated by Democrats. Even when Democrats controlled the Senate, Obama chose for his judges and legal appointees a diverse slate dominated by corporate lawyers and prosecutors with little paper trail; the few who had taken avowed positions as professors or who represented actually unpopular clients paid dearly for it. Some, like former prosecutor Sonia Sotomayor, have turned out to be progressive beacons. Still, Demand Justice has since proposed that no Big Law partners be nominated by the next Democratic administration, though Melissa Murray, an NYU law professor, former Sotomayor clerk, and Litman’s podcast co-host, has raised concerns that this could inadvertently shut out people of color and others without intergenerational wealth.

Remaking the composition of the courts, whether demographically or numerically, isn’t the most radical idea out there right now. “Elite lawyers on the left are attached to the courts as guarantors of rights and they have this view that what we need to do is that we just need to snatch them back,” NYU’s Sprigman says. “That is not good for democracy, to have this titanic battle for control of the courts, so courts can move us forward or move us back. That’s diseased.” Adding seats to the court, he says, “just reinforces that the court is the political decider. That’s a ridiculous way to run a country.”

Long critical of the Supreme Court, Sprigman has recently been arguing to strip the courts of much of their power through congressional action, which he argues would be constitutional. Doesn’t that sound a bit like the decades of conservatives inveighing against black-robed tyrants? “Yeah, but their campaign was bullshit,” he said. “They didn’t appoint cautious judicious minimalists, they appointed a bunch of ideologues. They wanted to capture the courts, not confine them to their proper role.” Sprigman argues it’s only a matter of time before any legislation Democrats pass — whether to address the recession, the coronavirus, climate change — gets cut to ribbons by Republican-controlled courts. Then what?

Sprigman concedes there’s a long way to go for such ideas to have popular support. Indeed, so far, the profound questioning is happening in a tiny, cloistered world, mostly in journals and panels and tweets. “We think there’s value in people who have succeeded in this system saying, ‘I reject it,’” says Coleman. “But it can’t only be happening at Harvard and Yale law schools, it needs to also be happening on the ground. One of the reasons legal elites have been able to get away with rigging the system is that they make it really inaccessible to people, so that people can’t engage, and that’s allowing that system to get as bad as it is.”

And of course, all of this debate assumes not only a Democratic sweep of the White House and the Senate but that this rebellious spirit outlasts the Trump administration. That’s what worries Chase Strangio, deputy director for Transgender Justice at the ACLU LGBT & HIV Project, who has worked within the courts while being a longtime critic of how they enshrine power. “One of my concerns is that you have this outrage and new and creative demands emerge,” Strangio says, “and then when the sense of urgency wanes, for one reason or another — you could imagine if Trump is defeated and you have a shift in power and the federal executive and in congress, that people will be lulled back into complacency, and the system will adapt to normalize this rightward shift even further.” Another way to say it, says Strangio, is that “the system accommodates over time to make sure the same people stay in power.”

For now, of course, the lawyers would love to have such problems.

Burn It All Down