Time for Liberals to Fall Out of Love with the Supreme Court

By Peter Schurmann

Editor’s Note: Last week a federal judge in Texas issued a ruling that prohibits the use of the abortion drug mifepristone nationwide. (An appeals court on Wednesday ruled the pill could remain available but rolled back access.) The Texas ruling sent shockwaves around the country and is likely headed for the Supreme Court. Michael Waldman, President and CEO of the Brennan Center for Justice, says the decision threatens a backlash that could boomerang back on the conservatives who helped bring it about.

Following Judge Matthew Kacsmaryk’s ruling invalidating the FDA’s approval of mifepristone, a judge in Washington State issued a contradictory ruling. Where does the case go from here?

This is an extraordinarily important case. It shows us how powerful the federal courts can be, how extreme so many of the judges now in the federal courts are, and what the stakes are for so many people. Judge Kacsmaryk’s ruling doesn’t just apply in Texas. It doesn’t just apply in states that have banned abortion. It would apply all over the country. It’s a very audacious move by one very activist and anti-abortion judge. An hour after the Texas decision, a federal judge in Washington State ruled the opposite… what this was designed to do, in part, was to create a difference between parts of the country’s judicial circuits, and that makes it more likely it will head quickly to the Supreme Court.

What’s been the response to the ruling from the legal community?

Judge Kacsmaryk’s ruling has been pretty widely decried and is very unusual in a number of ways. A quirk of the rules in federal courts in Texas basically allows you to pick your judge. The organization that brought the suit incorporated itself in Amarillo, Texas right after the Dobbs decision seemingly so it could get a case in front of Kacsmaryk, a Trump appointee. Kacsmaryk also relied on something called the Comstock Act, which is a law from the 1800s that prohibited sending contraception and pornography through the mail. The law has basically been struck down over the years… including by the Supreme Court. It’s a very iffy thing to rely on this notorious, defunct law from the 1800s. Finally, Kacsmaryk’s ruling was a nationwide injunction, where one trial court judge made a ruling affecting the whole country. Rather remarkably, the US Supreme Court has never said whether these single-judge, nationwide injunctions are okay. But as it is now, one judge with a gavel and a grudge can make policy for the whole country.

How do you see SCOTUS potentially ruling on the case?

Any other Supreme Court would have swatted this down within minutes if they had the chance. And in fact, that is what even this Supreme Court may do as the ruling completely undermines its claims in the Dobbs decision (overturning Roe v. Wade) less than a year ago that, “Oh, all we’re doing… is sending this back to the people, back to the states.” I also think the super majority of highly ideological conservatives on the Supreme Court have to understand there has been a massive, massive backlash to the Dobbs decision. We saw it most recently in Wisconsin, where after years of very closely divided elections, the liberal State Supreme Court judge won an 11-point victory, and a lot of the issue was around abortion rights. They know that if they uphold what Judge Kacsmaryk does in Texas, it will be a political earthquake with big partisan implications.

Partisan considerations like that sort of fly in the face of notions that our justice system is impartial, don’t they?

I think we are reminded with great clarity that the Supreme Court is a political institution. It always has been. And while it’s always supposed to be a little counter majoritarian – there are times we want the Supreme Court and federal courts generally to stand up for the rights of individuals or minorities against the majority – today’s court is increasingly the captive of a political minority, of a “faction” as James Madison would have called it. And it is moving in one direction even as the country moves in another.

All of this comes as public trust in our institutions continues to slide.

We give the Supreme Court this power because we accept the notion that it is above politics. But when the Supreme Court and Federal Courts act in a political way or seem to just make different rulings based on who the justices are, they squander that credibility. And not surprisingly, public trust in all kinds of institutions has dropped… but people have tended to trust the courts. Not anymore. Public approval and trust of the Supreme Court has plummeted. It is now at the lowest level recorded. That is a real shame, and it is a product of these extreme rulings.

The Texas ruling was followed by a ProPublica report detailing Judge Clarence Thomas’ ties with a billionaire conservative donor. Is there a throughline between the two?

The ProPublica story showed that a conservative mega donor, Harlan Crow, has been secretly subsidizing the lifestyle of Justice Clarence Thomas for the last 20 years. Private jet trips, fancy vacations, yacht cruises, going to a private resort hotel every summer. None of this was publicly disclosed. It needed to be. The Supreme Court is the only court in the United States that doesn’t have an ethics code that is enforceable. And even if Thomas’ actions are not illegal… it shows the cozy world of conservative activists, conservative donors, and these justices. It is a takeover of one branch of government by a faction of a faction. It shows to me that the Supreme Court really needs some repair.

An article in the Atlantic cites two previous eras when SCOTUS ran against the grain of American society. The first led to the Civil War and the second to overwhelming support for FDR’s New Deal policies. Where do you see things headed now?

I actually count three such eras. The first was after the Dred Scott decision in 1857, which led to the rise of Abraham Lincoln’s Republican Party, his election, and the Civil War that ended slavery. The second was in the beginning of the 20^th Century, when the Supreme Court felt its job was to stop regulation intended to protect health, safety, women, and workers at a time of great change and industrial consolidation. The fight went on for decades… prompting a constitutional revolution that upheld the New Deal. The third era is actually the Warren Court, which did extraordinary things like Brown v. Board of Education. But the court, that one time, was ahead of the country in pushing for greater rights and did it so fast, and so dramatically… that there was a big backlash. We are still living in that long backlash, and that has brought us to this moment.

You’ve got a new book coming out in June about the Supreme Court. What’s something you learned in your research that can help us make sense of this moment?

I was reminded in writing the book that the answers are not going to come in better briefs, better foot notes, or more carefully reasoned decisions by judges. The big constitutional questions in our country, sooner or later, are decided by the public, in the court of public opinion. And I think that continues to be the case. As I argue at the end of the book, it’s time for liberals to fall out of love with the Supreme Court. Conservatives understood that years ago. I think it’s a positive thing if progressives understand this is a political fight, and they need to make their case broadly to the public.

Michael Waldman is President and CEO of the Brennan Center for Justice at the NYU School of Law. A member of the Presidential Commission on the Supreme Court of the United States in 2021 and former director of speechwriting under President Bill Clinton, Waldman is the author of the forthcoming book, “The Supermajority: The Year the Supreme Court Divided America,” available June 6.