Reese: Progressives Need to Take Back the Judiciary


Photo by Mark Fischer, courtesy of Creative Commons

By Isaac Reese, Opinion Writer


Donald Trump has, in his first term alone, appointed 25% of all active federal judges. His influence on the judicial branch will be felt for generations to come. Because federal judges have life-tenure, these positions can be held for decades, creating drastic changes to the American legal system. The Republican Party has been stacking courts for a couple of years now, knowing the impact this could have on the nation’s laws and democracy. But they haven’t had to do it alone, Republicans have had aid from a right-wing conservative law group called the Federalist Society. They recruit and prepare young lawyers to become clerks, academics, and judges to carry out ultra-conservative rulings from the bench. If Democrats win this year’s elections, they need to work together reform the Supreme Court to counteract Republican court-packing.

Lasting Damage

Trump has altered the courts by nominating more judges than any other president in recent years. Even if he is defeated in November, his and Senator Mitch McConnell’s influence will last for years to come. Trump has nominated numerous judges who will destroy LGBTQ+ protections, overturn Roe v. Wade and undo much of the progress that has occurred in the United States since the 1960s. For example, Damien Schiff, who was nominated to the US Court of Federal Claims, believes states should criminalize the private sexual affairs of same-sex couples again. Schiff is only in his late 30s and will be around the judicial branches for decades.

If the Biden-Harris ticket wins the electoral college, they should, along with a Democratic congress, plan on increasing the number of Supreme Court Justices from nine to fifteen — a number floated by some former contenders in the 2020 Democratic primary. Biden should then nominate justices who are women, Black, Native American, LGBTQ+, Latino, and members of other historically underrepresented groups in the legal system. The Trump administration has torn apart legal protections for marginalized people and communities. In an effort to combat these discriminatory rulings, the potential Biden administration needs to nominate judges who come from the communities most targeted by the Trump presidency.

Limiting the Damage

The death of Justice Ruth Bader Ginsburg has shown how powerful these Supreme Court seats can be and why there is a need for reform the Court. Even with the possibility of increasing the numbers of Justices on the Supreme Court, reform is needed to ensure a more democratic and just Supreme Court. Term limits for Supreme Court justices is not a new idea. Republican Rick Perry supported them during his 2012 Presidential campaign as well as other Republicans like Mike Huckabee, showing this measure could have bipartisan support.

Term limits could help combat the partisan warfare around nominations that have increased despite the court’s goal to be seen as nonpartisan as possible. Term limits also mean that judges would have to more in touch with the nation and held accountable for the judicial rulings. Right now, their power is disconnected from the public and without any connection to the people who will be most affected by their decisions. Establishing term limits would reign in judges who see their lifetime appointment as a way to push their own personal agendas rather than make choices that will help Americans.

A Progressives Counterbalance

The Federalist Society recruits and prepares young lawyers to become clerks and judges to carry out ultra-conservative rulings from the bench. It also has a great amount of influence on legal academia, producing conservative law professors to create scholarly theories to justify conservative rulings. During the 2020 Democratic New Hampshire, primary Senator Bernie Sanders suggested that progressives establish their own version of the Federalist Society to help mentor progressive lawyers to become progressive judges and combat what Trump has done to the judicial branch.

There is a liberal version of the Federalist Society — the American Constitution Society — but they have not been as militant in influencing the judicial branch as the Federalist Society. One advantage that the Federalist Society has right now is that it has been around longer, so they have a larger pool of judges who are old enough to be nominated to the federal courts. Progressives need to invest a similar amount of time and energy to help get progressive judges into the courts.

The Supreme Court of the United States is one of the most powerful institutions in the US government. Many of our foundational freedoms are at stake this election, even more now with the passing of Ruth Bader Ginsberg. If the Democratic Party is able to hold on to the House while taking over both the Senate and the White House, massive changes will be needed to undo the damage to our democracy. Progressive legal experts will also have to mobilize fast to start pushing progressive judges as nominees for the Biden administration to select — just as Trump worked with the Federalist Society. The foundational elements of our democracy depend on the left reforming the judicial branch. Neglecting this branch will render progressive policies barely effective if not pointless.


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