//  6/22/20  //  Commentary

On Thursday morning, the Supreme Court handed the Trump administration a major loss, invalidating the administration’s effort to end the Deferred Action for Childhood Arrivals program. But the President and his supporters immediately tried to convert their loss into a win by using the Court’s decision as an occasion to encourage voters to re-elect Trump as president so that he could appoint more conservative lawyers as federal judges. Democrats, by contrast, stuck to talking about what a Democratic-controlled Congress could do. The contrast between the messaging reveals a persistent disparity in the two parties relative focus on the federal courts—Republicans focus more than Democrats on the courts. But if Democrats do not learn to talk to their voters about the importance of courts, they risk repeating their loss in the 2016 presidential election.

The President immediately took to Twitter after the Supreme Court invalidated the DACA rescission. At first, he made the decision about him, asking if the Supreme Court didn’t like him. But then he pivoted to talking about how the Court is important to several issues that are significant to his base. He warned that he needed to appoint “more Justices” or people “will lose [their] 2nd. Amendment [rights] & everything else” while encouraging them to “Vote Trump 2020!” He said that without “NEW JUSTICES,” “religious liberty” would be “over and gone.” After several additional tweets complaining about the DACA decision, he then promised to release “a new list of Conservative Supreme Court Justice nominees” who he would appoint to the Court if an additional vacancy arose during a second term.

The President was not the only Republican to seize on recent decisions to whip up political support for a second Trump term. Senator Tom Cotton encouraged the Chief Justice to “travel to Iowa” where “voters will find his strange views no more compelling than do the principled Justices.” Senator Ted Cruz said that the decision revealed how “elites in Washington” do not care about “illegal immigration” like “working men and women” do. And Senator Josh Hawley, a former clerk to Chief Justice Roberts, proclaimed that another recently decided Supreme Court opinion *about job protections for LGBT workers) marked the end of the conservative legal movement. 

Democrats talked about the Supreme Court’s DACA decision too.  But whereas Republicans used the decision as an opportunity to talk to their voters about the importance of appointing conservative Justices, Democrats used the decision as an opportunity to talk about the importance of a Democratic legislature to pass Democratic legislation.  They did not focus on the possible threat to DACA or Democratic causes from additional Republican-appointed Justices; nor did they discuss the possible benefits that Democratic-appointed Justices might bring. Instead, the presumptive Democratic nominee, Joe Biden, promised to pass legislation in Congress to protect DACA recipients. Former President Obama emphasized the same.

It is not that protecting DACA recipients through legislation is unimportant; it is imperative. But Democrats need to be able to talk to voters about why the courts are important or they risk repeating their loss in the 2016 presidential election. That year, 25% of Trump voters voted for the President because they wanted a Republican to appoint a Supreme Court Justice. And more than half of voters who identified the Supreme Court as the most important factor in their decision voted for Trump.

It should not be this difficult for Democrats to talk to potential voters about the courts.  The issues that voters – and the nation – care about are issues that will soon be decided by the Court or could be. The number one issue for voters in the 2018 midterm elections was health care.  Next term, the Supreme Court will decide a case about the validity of the Affordable Care Act and whether the entire Act must be struck down.  Democrats could and should talk to their base about the importance of ensuring that Republicans do not appoint Justices who will take away peoples’ health care.  In 2012, four conservative Justices, including Justice Thomas and Justice Alito who are both still on the Court, would have invalidated the entire ACA.

Or take the nationwide protests about systemic racism and police violence. These issues also provide an opportunity to talk to voters about the courts. Breonna Taylor was killed when police officers entered her apartment without knocking and announcing themselves.  A 5-4 Supreme Court decision held that officers could use evidence they gathered after entering a residence without first knocking. Democratic politicians could talk to voters about the importance of appointing Justices who will hold officers accountable when they break the law. The lack of accountability for police officers has garnered national attention as protesters have begun calling to end the doctrine of qualified immunity, which shields officers from liability in many excessive or deadly force cases. Last week, the Supreme Court declined to revisit that doctrine. Democratic politicians could talk to voters about the importance of appointing Justices who will remedy unlawful police violence.

Or take the DACA decision itself. The decision was 5-4, with the Chief Justice joining the four more progressive Justices. With one additional appointment, the result would be different if a second Trump administration attempts to rescind the DACA program again. (We don’t know what this Court would do if the Trump administration attempts to rescind the DACA program a second time.) Three Republican-appointed Justices, Justices Alito, Gorsuch, and Thomas also would have declared the DACA program unlawful. So with additional appointments, they might have a majority to end the program if later Democratic administrations sought to protect it.

The DACA decision was a major victory for justice. But to ensure that win does not become a loss, the Democratic party needs to learn to talk to the public about the importance of the courts.  


Versus Trump: Are Tax Returns Coming Soon?

7/18/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the Supreme Court's pair of decisions governing Trump's tax returns. Are they coming soon? Did the Democrats make a mistake in not being more aggressive in invoking the impeachment power? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Who Decides the Future of the Equal Rights Amendment?

7/6/20  //  In-Depth Analysis

Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

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Pinkwashing the Supreme Court

7/2/20  //  Commentary

The Court’s LGBTQ rulings should not distract from the broader trajectory of its jurisprudence in favor of the privileged.

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