Opening Forum Remarks by Demand Justice Executive Director Brian Fallon




December 5, 2018

Eaton Hotel
Washington, DC

Good evening!

I’d like to welcome you to this exciting forum entitled “The Court in Crisis: What’s Next for Progressives After Kavanaugh.” We are proud to bring together so many dynamic speakers this evening to discuss the future of the Supreme Court.

This conversation is happening at an important moment – coming on the heels of the contentious Kavanaugh confirmation fight. Though the outcome of that fight was dispiriting, our movement is so much better off today for having waged it. It awakened progressives – and the public at large – to the urgency of the crisis facing the courts. And we’ve already begun to successfully channel this increased activism into battling Trump’s other judicial nominees, as we saw with last week’s important defeat of Thomas Farr in the Senate.

For better or worse, though, Kavanaugh’s confirmation unmasked once and for all that the Supreme Court has devolved into a highly politicized institution. Progressives have long resisted coming to this conclusion; we’ve clung to an almost nostalgic view of the Court as an apolitical body. But there can be no denying now that the Court’s legitimacy has been diminished, no matter how much John Roberts may seek to deny or disguise that fact.

And so, we now must turn to the question of what to do about this.

Tonight’s event is also taking place amid an important conversation happening on the left. With Democrats taking back the House, and the presidential nominating process about to launch, there is a spirited discussion underway about what Democrats’ governing agenda should look like.

Already, there is a consensus emerging about the need for a bold, economic agenda that reduces inequality, raises wages, and makes health care truly universal. In addition, voter suppression schemes seen in states like Georgia and Florida this cycle – along with partisan power grabs by lame-duck legislatures in states where Republicans lost power this November – have put a spotlight on the need for proposals to safeguard our elections and restore “small-d” democracy.

But however bold an agenda Democrats pursue to make our elections and our economy fairer, it will all be for naught unless we get serious about the need to take two key steps in 2021:

First, Democrats in the Senate need to be willing to eliminate the legislative filibuster if and when Republicans revert to reflexively blocking any meaningful reform.

And second, we will need to reform the Supreme Court.

Because even in the most optimistic of scenarios — where Democrats keep the House, retake the White House, win the Senate and eliminate the filibuster — any new laws, from the day of enactment, will be vulnerable before this deeply politicized Court.

Long before now-Justice Kavanaugh vowed revenge on his political enemies at his confirmation hearing, the Roberts Court had already proven its willingness to act in a partisan manner.

On voter suppression, the Roberts Court showed its willingness to act politically by gutting the Voting Rights Act.

On campaign finance, the Roberts Court showed its willingness to act politically with the Citizens United decision.

On gerrymandering, the Roberts Court has repeatedly looked the other way in the face of the most nakedly partisan redistricting schemes.

And so even if Democrats in 2021 enact reforms in any of these areas, the Roberts Court, it must be assumed, will act in a partisan manner once again and hollow out any such reforms.

When it comes to economic plans that a future Democratic President may sign into law, the problem is the same. Medicare for all? A 15-dollar minimum wage? Combating climate change? Banning forced arbitration? No such proposals would be safe before the Roberts Court. Indeed, the Supreme Court nominees of the last two Republican presidents have been handpicked with the very purpose of ensuring their hostility to just these types of proposals.  

Progressives, therefore, cannot surrender to this conservative brand of judicial activism. We can’t resign ourselves to living the next 40 years under a judicial oligarchy installed by the Federalist Society.

We need reform of the third branch of the government. We must look at expanding the number of justices on the Court to ensure a future Democratic president has the chance to fill two or more seats on the Court. And we must look at ending life tenure for Supreme Court justices in favor of term limits that would guarantee each President in the future has the chance to nominate a fixed number of justices in any given four-year term.

We will hear about these and other proposals during parts of tonight’s program. There may be disagreement about exactly what style of Court reform makes most sense to pursue, but doing nothing is clearly not an option.

So, as the Democrats running for President begin to position themselves and lay out their ideas, they must incorporate reform of the Court into their plans. Our organization will take a lead role in seeking to ensure that they do so.

With that, I would like to kick off our program by introducing our first speaker – a true leader of our movement – Tom Perez. Before assuming his very important current role, he was a champion for working people as the Obama administration’s Secretary of Labor and before that, a crusader in battling discrimination and voter suppression as the Assistant Attorney General for Civil Rights at the Justice Department.  

Please join me in welcoming Tom Perez.