How Will Democrats React to a More Conservative Supreme Court?

Narration: After Neil Gorsuch and Brett Kavanaugh, it is possible for President Donald Trump to nominate a third Supreme Court justice during his presidency.

The 85-year-old Associate Justice Ruth Bader Ginsburg is currently recovering from lung cancer surgery. She was absent from oral argument on January 7th for the first time in her 25-year career on the court. She participated in deciding the two cases being argued by reading legal briefs and transcripts of oral arguments.

Ginsburg is the leader of the court’s liberal faction. She spent a considerable part of her legal career as an advocate for the advancement of gender equality and women’s rights, winning multiple victories arguing before the Supreme Court. She advocated as a volunteer lawyer for the American Civil Liberties Union and was a member of its board of directors and one of its general counsels in the 1970s.

During Barack Obama’s presidency, some progressive lawyers and activists called for Ginsburg to retire so that Obama would be able to appoint a like-minded successor, particularly while the Democratic Party held control of the U.S. Senate. Ginsburg rejected these pleas.

Simone Gao: If President Trump will be able to appoint another conservative Supreme Court justice, how will that affect national politics? Here is the rest of my discussion with Thomas Reston.

Simone Gao: Ever since the 1950s, the Supreme Court has had a liberal majority. Now with the confirmation of Justice Gorsuch and Justice Kavanaugh, that situation is changing. Now with the possible replacement of Justice Ruth Bader Ginsburg, the Democratic Party will lose a reliable left-leaning Supreme Court. How will they react?

Thomas Reston: I don’t regard the Supreme Court now as a left-wing Supreme Court. But I think that you are correct that for a period during the 1950s, 1960s, and 1970s, there was a majority on the Supreme Court which was very sympathetic to the forces of reform in American society and exercised the power of the court in a very robust way to assist the forces of reform in America. And I think that liberals in this country sort of got used to thinking in their own minds that the court was a reliable ally and that sometimes liberals might be able to get—they thought they might be able to get their way even if the people didn’t agree with them or the representatives of the people in Congress didn’t agree with them if they could simply go to the courts and win legal cases in the court which would get them the same result. I think now that the Supreme Court is getting much more conservative, and I think the Supreme Court has been reliably conservative for some time, but now it will become extremely conservative, and there won’t be much ambiguity about who has the power on the court now. I think that it behooves the liberals and the Democrats to renew their ties to the American people and to use the elective power of the people as a way to advance the reform agenda.

Simone Gao: So you think this is actually an opportunity for the Democratic Party to search for its soul, if you will, and be connected with the American people again?

Thomas Reston: I do indeed. I do indeed. It’s not that I am opposed to using the courts for advancing or certainly using the law to help people in this society. I have been the chairman of the board of the Mexican American Legal Defense Fund, MALDEF, a couple of times. And they stand up for the rights of Latinos here in the United States. It’s headquartered in Los Angeles. So I am proud that the work that civil rights lawyers do in our courts. But I do think, as a political matter, the Democratic Party needs—this is an opportunity for the Democratic Party to renew its very close ties deep into the American people. And that is part of what I mean in my book when I’m talking about regaining the soul, as the Democratic Party regaining its own soul.

Simone Gao: Do you think the Democratic establishment will do that?

Thomas Reston: Well, I think they’re going to need to because the numbers don’t add up for the Democrats anymore. The reality is that the country is sort of evenly divided politically. And the last election, while the Democrats registered major gains, it was not the sort of “hand of God” type of election that just swept the conservatives out all across the board. I think the election revealed that the American people are still deeply divided. And what the Democratic Party needs to do, instead of just trying to mobilize more of its current supporters, it needs to look for ways to move beyond its current base and back into the middle and back, in fact, into the Republican—into large groups of the American people who are now voting Republican who at one time were reliable Democratic voters. The white working class in this country, after all, is the heart of Franklin Roosevelt’s New Deal coalition.