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A Liberal Legal Movement Is Stirring at Last

A Supreme Court shortlist released on Tuesday marks the beginning of an effort to counter conservative judicial dominance.

Philadelphia District Attorney Larry Krasner is on the Demand Justice shortlist of liberal Supreme Court nominees. (Scott Heins/Getty Images)

Conservatives have long placed a higher priority on shaping the federal courts than their liberal adversaries. Demand Justice, a recently formed liberal group that focuses on judicial nominations, is trying to change that. On Tuesday, the organization unveiled its latest effort to influence the Democratic presidential candidates: a shortlist of almost three dozen potential Supreme Court nominees for them to draw upon, applying the same strategic thinking that organizations such as the Federalist Society has lent the Trump administration, to great effect.

Their list features 32 prominent liberal members of the legal community, only eight of whom currently hold judicial office. The rest are a diverse medley of litigators, legal scholars, civil servants, and elected officials. Many work for the ACLU, the NAACP Legal Defense Fund, and other civil-rights-oriented legal groups. A few are already nationally prominent figures, such as The New Jim Crow author Michelle Alexander, Equal Justice Initiative founder Bryan Stevenson, and Philadelphia District Attorney Larry Krasner. It’s easy to imagine a future Democratic president nominating most of them to the federal bench in some capacity.

“While Democrats play by the rules, Republicans are shredding the rule book, and the result is a partisan Supreme Court that works for corporations and the Republican Party and against everyone else,” Christopher Kang, Demand Justice’s chief counsel, said in a statement. “If we want to restore balance to our courts, we need to stop shying away from the fight for them and instead give progressives something to fight for: judges who have been bold, progressive champions who have been on the front lines advancing the law for our values.”

Whether any Democratic candidate will actually embrace the Demand Justice shortlist remains to be seen. It’s nevertheless an object lesson in the stark divide between the left and the right when it comes to the federal courts. Demand Justice’s list speaks volumes about how each side’s power structures shape their approach to judicial nominations, and what those structures mean for the future of the Supreme Court.

Demand Justice’s list evokes a similar set of prospective Supreme Court nominees released by Donald Trump in the fall of 2016. But the differences are more illuminating than the similarities. For one, Trump’s list arose in a starkly different political context. As a candidate, the president broke with GOP orthodoxy on multiple fronts. He denounced free-trade agreements in favor of tariffs and protectionism, castigated past Republican leaders for entangling the U.S. in overseas wars, and pledged to reject cuts to Social Security, Medicare, and Medicaid. Trump, unlike Marco Rubio or Ted Cruz, wasn’t a product of the conservative establishment. At one point in his life, he was a pro-choice Democrat.

Even as rank-and-file GOP voters largely flocked to Trump’s banner, conservative elites and donors saw danger. They had spent four decades building a movement to reshape the federal judiciary in their own image, nurturing a cadre of originalist lawyers and jurists to serve in it. Antonin Scalia’s sudden death in 2016 threatened to upend that project. If Hillary Clinton had won, her nominee to replace him would have almost certainly given the court’s liberals their first five-justice majority since the 1960s. And even if Trump somehow won, conservative legal figures worried that his ideological flexibility and self-professed willingness to strike deals would leave them empty-handed.

Trump’s 2016 shortlists amounted to a Faustian bargain of sorts between him and the conservative legal movement. In exchange for their support and influence, he would pledge to use the lists as a guide when naming future Supreme Court justices. For Trump, it was an easy deal to make. He had already promised to appoint judges in Scalia’s mold and often warned his supporters of Clinton’s potential nominees. In practical terms, this arrangement gave some conservatives a degree of cover when endorsing him. Texas Senator Ted Cruz, who had pointedly refused to back Trump at the party’s convention that summer, used the list to justify his endorsement in September.

These internal dynamics aren’t really at play for liberals. There is no real fear that Elizabeth Warren, Joe Biden, or Bernie Sanders would name someone to Justice Stephen Breyer’s right to the high court if given the chance. There is also currently no Supreme Court vacancy to force the issue to the top of the national agenda. And as BuzzFeed’s Zoe Tillman noted last month, there used to be a fundamental difference in how the two parties approached the subject. Democratic candidates and voters tended to focus on the issues that come before the court, such as abortion, gun control, and LGBT rights. Republicans, by comparison, typically focus on control of the courts as both an end and a means.

That gap is fading fast in the Trump era. Thanks to Justices Neil Gorsuch and Brett Kavanaugh, there is now a reliable conservative majority on the Supreme Court for the first time in more than a half-century, and it will likely persist for at least a generation. That majority owes its existence to a fractious sequence of events: Mitch McConnell’s blockade of Merrick Garland, Trump’s victory despite losing the popular vote, and Kavanaugh’s corrosive confirmation battle. As a result, Democratic presidential candidates are now openly weighing court-packing as a potential remedy to a Supreme Court that they increasingly view as illegitimate. (I’ve previously argued against that option and proposed a healthier solution.)

With no open seat on the court, Demand Justice’s shortlist still seems like a solution in search of a problem. But it’s illuminating as a roadmap for where liberal legal organizations are headed. The conservative legal movement began as a counter-revolution of sorts to the sweeping changes wrought by the Warren Court in the 1950s and 1960s. Over the years, the movement’s leaders, and the donors who funded them, built a network of organizations to support and credential its adherents. Those institutions incubated an alternative vision of the Constitution until their ideas could be unleashed as a formidable force in the federal judiciary and the legal academy.

It may be premature to describe what’s emerged from the trench warfare of the Trump years as a “liberal legal movement.” That would convey a sense of cohesion and unity among its members that does not currently exist. Nor does it yet have a holistic theory of constitutional interpretation to counter the Roberts Court and its originalism. But if such a movement arises down the line, and someone compiles a list of its early leaders, it would be largely indistinguishable from the one drawn up by Demand Justice this week.