There’s no greater threat to our form of government than attacks on the Supreme Court and the judiciary’s legitimacy.
The left was able for decades to get through the courts, including the Supreme Court, what it couldn’t get through Congress. Today, however, liberals are trying to subvert the legitimacy of the Supreme Court because it contains a majority of justices committed to the Constitution and the rule of law. Suddenly, instead of repeatedly approving the left’s agenda, the federal judiciary has become one of its greatest impediments. Believing they can no longer win at the court, progressives now want to change the rules of the game. Rather than improving their legal arguments and strategy, they are attacking the referees.
The first contours of the plan emerged in March 2020. As the justices prepared to rule on a Louisiana abortion law, Sen. Chuck Schumer stood in front of the Supreme Court and declared that Justices Brett Kavanaugh and Neil Gorsuch had “released the whirlwind” and would “pay the price.” He warned that they wouldn’t “know what hit” them if they went forward with “these awful decisions.” The pattern of attack that emerged since then makes it clear that Mr. Schumer meant what he said. The judiciary, and the justices themselves, are in the left’s cross hairs—sometimes literally.
The first step of the left’s plan to transform the courts was to end the filibuster. Breaking this longstanding Senate procedural norm would eventually give the majority party power to overhaul the membership, structure and jurisdiction of the Supreme Court. Next came a push for court-packing, both via legislation and President Biden’s presidential commission on court reform. Although these efforts weren’t successful, Democrats haven’t given up. They still want to end the filibuster and pack the court and are merely waiting for the right political moment.
A slew of attacks on judicial norms constituted the next step in the left’s plan to transform the courts. Liberal activists called for term limits for Supreme Court justices. They pressured Justice Stephen Breyer to retire during President Biden’s term. They protested outside the justices’ homes after the Dobbs decision leaked, and a potential assassin even targeted Justice Kavanaugh.
Meantime, Democrats filed sweeping legislation to add more than 200 new judges to the lower courts and require all Americans who wish to challenge the national implementation of federal laws to bring their cases to courts in the District of Columbia, where most judges are Democratic appointees. Most recently, they threatened to eliminate traditional single-judge judicial districts regardless of the needs of the people in those districts.
Perhaps most revealing, elected officials such as Rep. Alexandria Ocasio-Cortez—who swore an oath to support and defend the Constitution—have called on Americans simply to disregard federal court orders. This is an outright threat to the rule of law.
The left’s latest offensive has been to undermine the Supreme Court’s credibility by charging Republican-appointed justices with alleged disclosure failures while ignoring similar omissions by Democrat-appointed justices. The Senate Judiciary Committee summoned Chief Justice John Roberts, who wisely declined to appear. The committee then proposed the creation of a formal Supreme Court “ethics code”—a thinly veiled attempt to grant Congress power to police the justices.
Amid these attacks, liberal elites have kept up a steady stream of accusations of partisanship and bias against any judge who issues a decision out of step with progressive values. Baseless accusations of ethics violations usually follow. As the adage says, “a lie repeated often enough will eventually be believed.”
These attacks on the judiciary share the goal of restructuring the courts and delegitimizing the rule of law. They might be working. Recent polling shows public approval of the Supreme Court at historic lows. More than 90% of judges now believe judicial independence is threatened, primarily by the attacks and the left’s politicization of the judiciary. And more offensives against the courts are coming. A coalition of progressive groups will soon launch a nationwide campaign calling again for structural changes to the Supreme Court.
The left hasn’t always had such disregard for the integrity of the courts. In 2001, the American Civil Liberties Union said that maintaining the credibility of the Supreme Court was “critical” to “preserving civil liberties.” Failure to maintain judicial credibility, it said, would damage not only the high court but “the rule of law.” The ACLU was right.
If politically motivated schemes to transform the courts are successful, the judiciary will become little more than a political tool of the executive and legislative branches. Judges will lose their ability to enforce the rule of law with impartiality, and the last safeguard to our civil liberties will be gone.
The left’s grand scheme to delegitimize the courts is more than a threat to the judiciary. It is a threat to our constitutional republic. It must not succeed.
Mr. Meese is a distinguished fellow emeritus at the Heritage Foundation. He served as U.S. attorney general, 1985-88. Mr. Shackelford is president and chief legal counsel of First Liberty Institute.
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Appeared in the May 17, 2023, print edition as ‘The Left’s War on the Rule of Law’.