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Progressives Look to Next Term to Keep Focus on Supreme Court

July 23, 2021, 8:46 AM

Progressive groups seeking to remake the U.S. Supreme Court had hoped to spend this summer helping win confirmation of what was expected to be the first Black woman nominated as a justice.

Instead, Justice Stephen Breyer opted to stick around and advocates focused on the court’s conservative drift have watched their issue mostly recede from view. Progressive Demand Justice, for example, is sending out fundraising emails in recent days denouncing “NRA propaganda” and warning the Supreme Court is “gutting the Voting Rights Act.”

Advocates are looking to next term—in which the justices will take up cases involving abortion, guns and possibly affirmative action—to fire up the base in advance of the 2022 congressional midterms.

“The docket next year is going to help make the case for why the court is an urgent issue,” said Brian Fallon, executive director of Demand Justice.

Demand Justice is planning to team with March for Our Lives, a student-led group supporting gun-control legislation, which it approached after the high court granted a concealed carry case for the term beginning in October, New York State Rifle and Pistol Association v. Corlett. Fallon said Demand Justice also is working with Sunrise Movement, a youth climate change group.

“There’s a lot of relatively new, young insurgent-minded groups, and we just want to sort of suffuse the argument about the court and the need for court reform into their narrative about what’s broken as it affects their particular issue,” Fallon said.

Demand Justice was the loudest voice calling for Breyer’s retirement at 82 and after nearly three decades on the court where conservatives expanded their majority to 6-3 during the Trump years. At one point, the group had a billboard truck circle the Supreme Court that read: “Breyer, retire. It’s time for a Black woman Supreme Court justice. There’s no time to waste.”

Despite aggressive advocacy, Demand Justice never had any illusions that Breyer retiring would create the systematic change, like adding seats to the Supreme Court, that it seeks. “A single retirement is not going to shift the balance,” Fallon said.

In testimony July 20 before a White House commission weighing changes to the Supreme Court, Demand Justice chief counsel Chris Kang spoke in favor of adding seats, grilling legal elites, academics, media, and the court itself for selling a “fiction” that it’s an apolitical institution.

Structural Change

Progressive groups also see Breyer’s decision not to step down as compelling evidence for why changes to the Supreme Court, like term limits or court expansion, are needed.

Molly Coleman, executive director of law student and young attorney activist group People’s Parity Project, said the fact that Democrats’ prospects for appointing a justice hinge on Breyer and maintaining their slim 50-seat majority “makes the need for court reform more urgent.”

“All of the energy that we would have put in this summer to seeing Judge Ketanji Brown Jackson or some other brilliant jurist confirmed to the Supreme Court, we’re putting into court reform,” Coleman said.

People’s Parity Project, Demand Justice and other groups have been working to build support for a legislative proposal to add four seats to the Supreme Court, which is unlikely to advance in the current Congress given the 60-vote threshold to overcome Senate filibusters.

Changing the institution may not be a “flashpoint moment” confirming a Supreme Court justice would be, Coleman said. “It’s going to be a long slog to get where we need to go, so we’re going to need far more people engaged in the conversation.”

Building Support

Meanwhile, at least one group plans to keep the focus on building support for nominating the first Black woman justice, something Joe Biden has promised to do, if given the chance.

Kim Tignor, a co-founder of She Will Rise, said the group plans to continue education on the Supreme Court, particularly in marginalized communities that don’t typically engage in issues involving the judiciary and supporting Biden’s Black women judicial nominees to the lower courts.

“What we’re committed to doing is ensuring that when we do have our nominee, that we have an army that stands ready, that is energized, that is informed and ready to ensure that our Black woman justice makes it through confirmation process,” Tignor said.

She Will Rise was started last summer as an initiative of Demand Justice but moved earlier this year under the auspices of Take Creative Control, a group Tignor founded that advocates for protecting the intellectual property rights of creators who are people of color.

The group has commissioned a mural depicting Black women and the Supreme Court in Washington’s Shaw neighborhood and organized a group photo in which Black girls donned judicial robes to show what future justices might look like.

Tignor said the civil rights community must work to ensure the Supreme Court’s “deliberative process is as inclusive as the rich diversity of this country.”

That includes asking the justices who they have serving as law clerks, Tignor said. “That is a Supreme Court pipeline in and of itself,” she said. Demographic information about law clerks is not typically readily disclosed by the court.

Breyer Retire 2.0

Fallon said he expects more people to call on Breyer to step down next summer with Democrats still controlling the narrowly divided Senate, absent an unexpected development, before the November midterms.

A lot of the pushback Demand Justice received was from people who said the group should give Breyer a chance to announce his retirement, and that if he did, it would be at the end of the term anyway, Fallon said of the court’s end-of-June timetable.

“Now we can point to the fact that he didn’t do the right thing,” he said.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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