The Supreme Court has always been political. Let the debate begin. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

I’m very proud that today Simon & Schuster published my new book, The Supermajority. It tells the story of the U.S. Supreme Court’s lurch to the right and why it’s bad for the country. I wanted to draw on the lessons of history to understand how we got here and what will happen next. I wanted to make the case that robust debate about the Supreme Court is not a transgression — it is the way the country always has responded when the justices go too far. And I wanted to stir people to action.

As always, I learned a lot in writing it.

One thing that became clear: we’ve been here before. Most of the time the Court reflects the public consensus. But a few times the Court has been unduly activist, or ideological, or partisan, and that has provoked a fierce backlash. Those court fights have been at the center of politics. They have been intense and partisan, and they have shaped the country.

The 1857 Dred Scott ruling that Black people could never be U.S. citizens, for example. It was a moral atrocity, of course. I knew it helped lead to the Civil War, but I hadn’t realized just how much it shaped politics. Abraham Lincoln’s attacks on it led to his election to the presidency and the rise of the Republican Party. Historians have chided him for accusing the justices of working with President James Buchanan and pro-slavery politicians — but it turns out even conspiracy-minded Honest Abe underestimated how much collusion was actually going on.

Similarly, I hadn’t realized the big issue in Theodore Roosevelt’s fabled 1912 “Bull Moose” presidential campaign was his attack on the reactionary justices and their rulings in cases like Lochner v. New York. The brief moment of the Warren Court, when the Court was ahead of the country, bedazzled many later generations of liberals even though, for most of our history, “judicial restraint” was a progressive battle cry. And we are still living through the conservative backlash to the Warren Court era.

I became increasingly determined to shake the complacency of my fellow liberals. We need to disenthrall ourselves — to recognize that justices are not wizards (even though they wear robes), nor religious figures, but government officials. Very, very powerful government officials, with lifetime appointments, backed by a huge dark money machine.

A second thing that became clear over the year I wrote the book: this was not just a highly consequential term, but a really noisy one. The Dobbs ruling on abortion leaked, we learned just how involved Ginni Thomas was in the “stop the steal” movement that led to the January 6 insurrection, and the justices started attacking each other in public. An observer once likened an earlier Court to “nine scorpions in a bottle.” Now the scorpions are crawling all over the table. All this has helped bring about the collapse of public confidence in the Court, at a moment when its right-wing leaders are aiming to make big, bold moves. A recipe for further conflict.

I’m encouraged by one more thing. So many people despair when they think about the Court. There is, as Dahlia Lithwick of Slate puts it, a learned helplessness. In fact, there are things we can do. The conclusion of the book endorses term limits (which are hugely popular across the political spectrum), a binding ethics code, and other reforms of the Court. More than that, we can demand that Congress step up, for example by restoring the Voting Rights Act, even if it means changing the filibuster rules to do so. State courts and constitutions can play a big role. We should not be afraid of constitutional amendments and so on.

Above all, we must make sure the Constitution and the Supreme Court are key public issues going forward. The response to Dobbs suggests that many Americans suddenly have awakened to the challenge. The country is moving in one direction, and the Court is veering sharply in another. That gap can help shape politics in 2024 and beyond.

Finally, a confession: I loved writing it. The sportswriter Red Smith once famously said, “Writing is easy. All you have to do is sit down at the typewriter, cut open a vein, and bleed.” Not for me. I especially take pleasure from doing this work with my colleagues at the Brennan Center. We have the privilege of grappling with big issues, of fighting for American democracy at its point of maximum peril. Bringing the Supreme Court to its proper place in our system is a big part of that mission.

A Bill for a Safer and Stronger New York

Far too many New Yorkers with criminal convictions are still paying a price long after finishing their sentences. This week, state legislators have a chance to pass the Clean Slate Act, which would automatically seal old criminal records and make it easier for millions to secure jobs, education, and housing and rebuild their lives. This crucial bill “makes sense for public safety, for second chances, and for the future of our neighborhoods and our state,” Brendan Cox and Rosemary Nidiry write in New York’s Daily News. Read more

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The Constitutional Roadblocks to Suing Child Abusers

Colorado is among the growing number of states that have retroactively eliminated statutes of limitations on child sexual abuse claims, making it easier for survivors to seek justice against their abusers. A recent case heard by the state supreme court, however, shows how these well-intentioned reforms may be hindered by concerns that they violate state constitutional due process protections for defendants. In State Court Report, University of Georgia Law School’s Emma Hetherington explores the conflict these retroactive laws create between defendants’ rights and the good of the public. READ MORE

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Georgia Confronts Constitutional Questions

Numerous states have cycled through multiple constitutions over the decades, which can present complex interpretive challenges for state courts. In Georgia, which has had nearly a dozen constitutions, the state high court grappled with these issues when considering a unique Reconstruction-era constitutional provision that was readopted several times. A new State Court Report piece by the Center for Judicial Engagement’s Anthony Sanders examines the questions the case raised about precedent, interpretation, and a provision’s “original meaning.” READ MORE

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Coming Up

VIRTUAL EVENT: Life After the Death Penalty
TOMORROW, June 7, 3–4 p.m. ET

Join us for a live discussion about the death penalty, justice, and empathy. Panelists Alex Mar, author of Seventy Times Seven: A True Story of Murder and Mercy, and journalist Josie Duffy Rice will be led in conversation by moderator Laura Coates of CNN. RSVP today

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LIVE IN NYC & ONLINE: How the Supreme Court Is Dividing America
Tuesday, June 13, 6–7 p.m. ET

The most extreme Supreme Court in decades is on the verge of changing the nation — again. How did we get here? How will overreach by the justices impact the 2024 election? And what can we do to protect American democracy from a fiercely partisan Supreme Court? Join us at the 92nd Street Y or via livestream for a discussion of Brennan Center President Michael Waldman’s new book, The Supermajority, about the Court’s devastating 2021–2022 term. He will be joined by moderator George Stephanopoulos of ABC News, as well as constitutional law scholars Wilfred Codrington III and Cristina Rodríguez. RSVP today

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Produced in partnership between 92NY’s Newmark Civic Life Series and the Brennan Center

VIRTUAL EVENT: The Supermajority
Wednesday, June 21, 1–2 p.m. ET

Today's Supreme Court is the most extreme in decades. Nine unelected justices hold lifetime seats with great power and, driven by the majority’s originalist ideals, they are rapidly upending American life as we know it. Join us for a virtual event with Michael Waldman for expert analysis on the threat the current Court poses and what must be done to shore up democracy. RSVP today

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News
Lawrence Norden on the impact of AI on politics // THE MESSENGER
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Michael Waldman on upcoming Supreme Court rulings // CNN
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Joanna Zdanys on efforts to undermine New York’s public campaign financing program // NY1
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