The Three-Branch GOP Strategy to Limit Our Rights in the Courts

🤓 Bite-Sized Knurd: Conservatives are using all levels of government to guarantee the Supreme Court will rule favorably by limiting our rights, hamstringing government, and dismantling regulations.

In Case You Missed It: How the Court was Corrupted: A Brief History of the Federalist Society

Now that we’re caught up on the founding and history of the Supreme Court, it’s time to take us to the present day.

It’s no secret that the Supreme Court has made some pretty controversial decisions now that Trump was able to appoint three (two of which he arguably stole) justices on the court. The ACLU has a full list of the court’s decisions. These are the ones that have caught my eye:

• Abortion: Stripped the 50-year right for a woman’s right to make her own healthcare and reproductive decisions
• Climate Action: Limited the EPA's powers to combat climate change and impose regulations on high-polluting industries
• Gun rights: Restricted state government authority to enact gun legislation
• Separation of Church & State: Abolished the separation of church and state allowing a high school coach to force its players to gather for Christian prayer on the 50-yard line
• Capital Punishment: Allows states to execute inmates even if it causes pain and suffering

So to recap, we have fewer rights than we did 50 years ago and the government is less equipped to act on the crises we face, but our government can now kill people painfully!

I laugh so that I don’t cry. It is no secret that the court’s right-wing justices are bent on undoing decades worth of progressive freedoms and regulations in order to maintain a system where wealthy white men make it out on top. The threads of these decisions will have reverberating consequences for so many people, yet the public barely hears about these wild court decisions and conservative justices are treated with reverence by the media.

Let’s be clear, the majority of U.S. citizens do not want the country that this extremist Supreme Court envisions. You can look at nearly every Data for Progress poll as proof.

So how exactly are they getting away with this in broad daylight?

Unsurprisingly, they are using some very clever tactics to obscure the cruelty and corruption of their extremist actions. They’re doing this with three different levers:

1. Using Senate rules and dysfunction to stop legislation
2. Judge shopping for favorable rulings
3. Abusing the “shadow docket” to conceal the court’s reasoning for overturning long-standing precedent.

Mucking Up Congress

First and foremost, Senate procedures are standing in the way of having a functioning US government.

The only reason the Supreme Court is even more powerful now is because Congress can’t do its job. Republicans have set out to grind Congress to a standstill so they can blame the Democrat that sits in the White House while they wipe away our rights in the courts. It’s a three-branch strategy.

Using boring procedural rules, Republicans add roadblocks to confirming judges and passing laws. Even if you have a Senate majority and a Democratic president, you still can’t pass most things unless the filibuster is abolished. Right now it requires 60 votes to pass a bill in the Senate. Tell me, when 50 Senators are in a political party that promotes political violence, is it even possible to get 60 Senators to agree to anything worthwhile?

Democrats were strategic enough to pass some really crucial legislation like the biggest-ever climate package, but progressive priorities like gun reform, abortion access, and immigration can’t be addressed until these rules change.

Read more in my Citizen's Guide to Abolishing the Filibusters.

Judge Shopping

Their second tactic brings us to the lower federal courts. Activist groups have recently begun “shopping” their case around by filing cases in districts with a highly conservative judge to get a favorable ruling. This strategy is surging with conservative groups post-Trump.

McConnell’s one mission during the Trump years was to confirm as many judges as possible. He did a pretty good job. In one term, the GOP filled 226 judges, nearly as much as Obama’s 320 during his two terms.

Now GOP operatives can be confident that their cases will be ruled favorably. They don’t have to worry about those pesky things like facts, precedent, and a well-reasoned case.

The now infamous ruling on mifepristone, the abortion medication, is an example of court shopping and exactly why that decision defied all logic.

The Shadow Docket

In recent years, the Supreme Court has increasingly used the shadow docket, a formerly obscure procedure, to rule on significant cases.

Normally, about 65 cases go through the formal process where cases are heard, briefs are sent, oral arguments are had, and justices release a decision and detailed opinions. However, the court has recently been using the shadow docket to escape accountability.

Cases that go through the shadow docket don’t have hearings or required briefings so the judges are less informed on the merits of the case. Plus most decisions are released in the middle of the night with little detail about the decision.

Essentially, this lets the Court make the decisions they want without the pesky problem of having the Constitution on your side or the public hear their reasoning.

Unfortunately, this is the lay of the land until serious court reform can be made. Expect some turbulence for the foreseeable future. Luckily, the increased scrutiny of conservative justices has amplified the calls for reform.

For our final week with SCOTUS, we’re going to hear the options for fixing a Court with countless charges of corruption whose majorities were ill-gotten.

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