Democrats are turning their attention to the Supreme Court as Election Day approaches, framing the institution as a crucial asset to reclaim after former President Donald Trump cemented a Republican-appointed majority on the bench.
Anger among Democrats has reached a boiling point over the Supreme Court’s 6-3 Republican-appointed majority, viewing it as an extension of Trump and the Republican Party's personal and political agendas. Democrats have said they want to rein in the powers of the judiciary, and Senate Majority Leader Chuck Schumer (D-NY) has already outlined a path toward accomplishing that goal in the event Vice President Kamala Harris wins the election.
"We have a very strong argument that Congress by statute can undo what the Supreme Court does, that it does not require a Constitutional Amendment," Schumer said last month of his No Kings Act, which aims to reverse the recent Trump v. United States presidential immunity decision. But the bill includes a longer term goal to subvert justices' power to adjudicate the constitutionality of legislation.
Policy experts told the Washington Examiner that Democrats' frustration comes from a deeper lamentation of a bygone era when the high court embraced "living constitutionalism," a jurisprudence that some court advocates such as the Pacific Legal Foundation say helped uphold many of the party's favored laws and regulations of the past 40 years.
"Democrats have long relied on control of the Supreme Court to advance their agenda when the public does not fully support it, especially on the cultural issues that motivate a large part of their base," said Henry Olsen of the Ethics and Public Policy Center, a pro-family and religious freedom advocacy group.
Amid President Joe Biden's unprecedented withdrawal from the 2024 race in July, he made a historic reversal of his previous position by embracing judicial reforms, saying he would sign bills to adopt binding ethics codes and term limits for the high court. Those measures would face a steep road to becoming law due to the necessary two-thirds majority votes needed for passage.
But Sen. Sheldon Whitehouse (D-RI), a leading attack dog against Chief Justice John Roberts's court, has a controversial plan to overcome the current hurdles. He told the Dispatch last month that if Democrats score a clean sweep in November, they would be “virtually certain” to pass a Supreme Court reform bill by a simple majority, evading the current 60-vote requirement for many bills.
Madeline Summerville, an attorney, political analyst, and speechwriter for the Democratic Party in the battleground state of Georgia, told the Washington Examiner that "fear galvanizes voters," adding that they are "well aware of the amount of power and control the Supreme Court has over our ability to move about freely in our daily lives."
"On a fundamental level, when the court issues a decision, things can change for the worse on a dime and the only control we have in the matter is to vote," Summerville added.
Here's how Democrats are driving their base to vote with the Supreme Court in mind.
Targeting justices
In April of last year, the nonprofit outlet ProPublica began a series of reports that raised ethical concerns about the ways in which Justice Clarence Thomas , one of the most conservative jurists, handled his ethical disclosures regarding unreported trips paid for by a Dallas-based real estate developer.
It later published a report that thrust another conservative jurist, Justice Samuel Alito , into the limelight over a single fishing trip he attended with a billionaire who later had cases before the court.
Despite these investigations, ProPublica never once alleged nor confirmed that the justices' work and decision process were influenced by these outings. Additionally, a series of Washington Examiner investigations later uncovered how a network of left-wing dark money groups specifically sought to fund efforts to smear Alito and Thomas, who happen to be some of the first who would be forced to retire if a term limits bill was enacted.
Since then, the Roberts court has gone through changes.
Indeed, the reports came during a time when the public's trust in the high court was wounded due to the May 2022 leaked opinion that signaled the overturning of Roe v. Wade, which was followed by weeks of protests outside the justices' homes, historically low approval ratings, and even an assassination attempt against Trump-appointed Justice Brett Kavanaugh.
After Democrats raged over a lack of a specified ethics code for the justices, the Judicial Conference, which governs rules for the federal courts, adjusted its rules in March 2023 to make clear that any luxury trips offered to judges and justices must be documented on financial disclosures going forward. Then, Roberts last fall agreed to adopt a code of conduct. Notably, the court had been toiling with adopting an ethics code for some time, even before the ProPublica reports.
Adopting the code did not get rid of the complaints, however, and since then, some activists have called for a system of accountability that resembles a panel of federal judges to review ethical complaints and recusal requests against certain high court members.
Justice Ketanji Brown Jackson, Biden's sole high court nominee, recently confirmed in an interview that she supports a binding ethics code, joining fellow liberal Justice Elena Kagan in publicly backing one.
Smears against spouses
The wives of both Alito and Thomas have been the subjects of reports and attack pieces by a multitude of legacy news outlets. The stories have also served to chip away the trust in and credibility of the high court.
The height of the attacks against Virginia "Ginni" Thomas came when the now-defunct House Jan. 6 committee, formed in the previous Congress, called her for an interview over allegations by Democrats that she was "intimately involved" in Trump's alleged effort to overturn the 2020 election. But in the end, Clarence Thomas's wife was never even mentioned in the more than 800-page report the committee produced from its investigation.
Earlier this year, Martha-Ann Alito became the center of a brief controversy merely due to flags that she flew outside of her house. In the end, Samuel Alito released a statement vowing his wife's decision to hang an upside-down American flag was hers and hers alone and that it was in response to her objection to a neighbor's vulgar yard sign, not an ideological signal.
"The personal attacks on Alito, Thomas, and their wives show how much the party base despises these justices' jurisprudence," Olsen said, adding that it "shows the depth of their hatred and their willingness to abandon all restraint in their efforts to bring them down."
A pervasive double standard
During a recent CBS News interview with Jackson, she was asked about $4 million in "gifts" Clarence Thomas received "over the past two decades," with the reporter citing a figure that matches one on a chart created by the left-leaning nonprofit group Fix the Court. The group was previously exposed by the Washington Examiner for failing to disclose grassroots lobbying efforts on federal forms, which its founder and sole operator, Gabe Roth, later corrected.
🧵If you are a liberal Justice, the ethics double standard is alive and thriving.
Justice Jackson claims “I follow the rules,” but she failed to disclose husband’s medical malpractice consulting fees on her forms for a decade & then when she admitted in 2022 she hadn’t… pic.twitter.com/hKA8WzAsDq
— Mark Paoletta (@MarkPaoletta)
September 5, 2024 Mark Paoletta, a lawyer for Ginni Thomas, highlighted in a June Wall Street Journal op-ed that the nonprofit group's charts on gifts justices receive are based on an "inconsistent standard for what constitutes a 'gift' to inflate Justice Thomas’s numbers."
For example, the nonprofit group does not even consider retired Justice Stephen Breyer's 230 trips and excluded 17 trips the Pritzker family's Architecture Foundation paid for the Clinton nominee to take to cities around the world, from London to Copenhagen. Fix the Court's charts also do not count a $1 million prize the Berggruen Institute awarded the late Justice Ruth Bader Ginsburg in 2019, which the Demcoratic-appointed justice distributed to charities of her preference, according to Paoletta's analysis.
To be fair, the strategies Democrats now deploy regarding ethical allegations of certain justices mirror some tactics that Republicans of the past utilized in the late 20th century.
In the early 1970s, the Republican Party was frustrated with the Supreme Court, which was dominated by Democratic-appointed justices who adhered to a more subjective jurisprudence, or the idea of the Constitution being a "living" and changing document. This tension was heightened when the Democratic-controlled Senate rejected two conservative candidates nominated by President Richard Nixon.
In response, Republicans took advantage of allegations of ethical misconduct against Democratic-appointed justices and proposed legislation that would require the Supreme Court to adhere to financial disclosure rules.
The bill did not advance beyond the committee stage, and a separate effort by then-House Minority Leader Gerald Ford to impeach Justice William O. Douglas, who was considered one of the more liberal justices on the bench, likewise failed.
Much like the failures by Republicans in the 1970s to impeach Douglas, Democrats today are likewise slated to fail on a recently floated bid by Rep. Alexandria Ocasio-Cortez (D-NY) to impeach Clarence Thomas, likely due to the sheer difficulty and lack of merit behind the effort.
Olsen noted that the Republicans' decades of protest against the high court's decisions decidedly helped bolster social conservative votes. However, he noted the "Democrats' attack on the institutional legitimacy of a court that disagrees with them seems to me to be unprecedented in its scope."
Despite these smears, the court is fulfilling long-standing conservative goals, such as sending the issue of gestational limits on abortion back to the states with the Dobbs v. Jackson Women's Health Organization decision in 2022, rulings that bolster religious liberties, and diminishing the power of the administrative state in rulings such as the Loper Bright v. Raimondo case that overturned the 1984 Chevron doctrine.
Summerville said the consequences to the agenda items Republicans reap from these decisions manifests into Democrats believing the "majority of these justices are making decisions rooted in their own, personal religious doctrine, rather than the law of the land."
"So, the party’s public critiques of the court not only create feelings of camaraderie amongst left-wingers, which ultimately strengthens the party from within" and helps drive the vote, Summerville suggested.
Term limits and enforceable ethics become the new 'court packing'
For many years, some Democrats have touted a solution to grapple with the Supreme Court's conservative majority: merely expand the size of the court, a practice known as "court packing."
In 2019, when Harris tried and failed to become the nominee to take on Trump the following year, she told Bloomberg she was "open to this conversation about increasing the number of people on the United States Supreme Court."
However, Democrats' calls for such changes have diminished recently, potentially over the concern that "an open push to stack the court might hurt them with independents," Olsen said.
Olsen added he believes there could be some potential for a Democratic-controlled Congress to pass a measure to impose a binding code of ethics on the justices "depending on how it was designed and what the proposed penalties for violation are."
The plan to impose term limits, which currently do not apply to lawmakers in the halls of Congress, may be "struck down if it did pass Congress and were signed into law," Olsen said.
A Mason-Dixon Polling and Strategy survey, commissioned by the conservative-leaning First Liberty Institute, found last month that a majority of voters are troubled by the idea of drawing away power from the judiciary, with 52% of respondents saying they oppose the idea and 41% of likely voters supporting the prospect of amending the Constitution to change the Supreme Court's structure.
Meanwhile, a poll from CBS News and YouGov painted a slightly different picture, with a plurality of voters saying they supported both a mandatory retirement age for justices and 18-year term limits, although Republican respondents were less open to term limits.
Overall, this sampling of voter data may suggest that this year could resemble past elections in which the Supreme Court issue did not move the needle significantly with voters despite Democratic promises to meet the demands of some factions of their party that are demanding changes to the high court.
"So far, the court remains an issue only for the two parties' bases. Attacking it helps Democrats marginally but only to the extent it gives them a slight turnout increase or added resources to target swing voters on other issues," Olsen said.
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But Democratic strategists like Summerville said as the race gets down to the wire, "the focus should be on claiming as many undecided voters as possible," adding, "Base voters have obviously already decided how they're voting."
"For this election, it is estimated that there is a relatively large white, educated, suburban female demographic that is still undecided," she said, noting that if Harris and Democrats can keep the topics focused on the Supreme Court and abortion, "they have a chance to turn this group blue."
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