Following conservative playbook, progressives look to Supreme Court to motivate voters
Washington — In 2016, the Supreme Court vacancy opened by the death of Justice Antonin Scalia spurred conservatives to vote for Donald Trump, a celebrity businessman who made the judicial appointment central to his campaign.
Most Americans — 70%, according to CBS News exit polling — considered Supreme Court appointments an important or the most important factor in deciding their vote for president in that election. Crucial to Mr. Trump's victory was his promise to appoint justices in the mold of Scalia, which he reinforced by releasing a list of Supreme Court contenders in the run-up to the election.
Now, with two Supreme Court appointments in his first term, the president is again pledging to give voters a slate of candidates next month, and he plans to highlight recent rulings in which Chief Justice John Roberts joined the court's four-member liberal bloc as a springboard.
With the election less than 100 days away, Mr. Trump and conservatives won't be alone in staking the future of the high court on November 3, since progressive groups are also making it a mobilizing issue, albeit for Democratic voters.
"There's an understanding this year like I haven't seen in the past that the Supreme Court is on the ballot," Jen Psaki, former White House communications director under President Obama, told CBS News. "Republicans have always known that, but we've seen in polls that Democrats and progressives are really starting to understand that and be motivated."
A Morning Consult/Politico poll released Wednesday found that 57% of Democratic voters said the Supreme Court was "very important" in deciding which candidate to vote for in the presidential election, an increase from 48% in early May. Among Republican voters, 53% said the high court was "very important" in choosing who to support in November, which is unchanged from May.
The poll was conducted after the high court closed out its blockbuster term with rulings on abortion restrictions, workplace protections for LGBTQ workers, immigration and efforts to secure Mr. Trump's tax returns and business records.
And the court has still been active this summer. The justices have responded to several emergency requests, many of which involve voting rights and restrictions imposed due to the coronavirus pandemic. This month, the high court left in place a temporary block on a lower court order that paved the way for felons in Florida to register to vote. A divided 5-4 court also blocked a lower court ruling that eased voting restrictions in Alabama during the pandemic, and curtailed extended absentee voting in Wisconsin.
Chris Kang, chief counsel for Demand Justice, a progressive judicial advocacy group that is leading the effort to make the court a key factor for Democratic voters, said voting rights disputes could help motivate liberal voters to turn out.
"What has been the dominant theme of the Roberts Court has been a hostility to voting rights, especially when it comes to people of color," Kang told CBS News. "This isn't something the Supreme Court is going to avoid."
It's also not lost on Democrats that Justice Ruth Bader Ginsburg, who is the anchor of the bench's liberal wing, has been plagued by health issues.
Ginsburg has had four bouts with cancer and been in and out of the hospital for various ailments this year. The justice disclosed last month that she has been undergoing treatment for a recurrence of cancer after a scan in February revealed lesions on her liver, and the Supreme Court said late last month the 87-year-old underwent a non-surgical procedure on a bile duct stent she received last year.
In a statement revealing her chemotherapy, Ginsburg closed with her oft-repeated promise to remain on the Supreme Court as long as she can do the job full steam, and said "I remain fully able to do that." Still, her health woes have underscored what seems like a strong possibility that the next president will fill another vacancy.
"If you're looking at a situation where Donald Trump could nominate another Brett Kavanaugh or two Brett Kavanaughs, who are young and party loyalists, I think the connection has been drawn in a more clear way than it has been in the past," Psaki said. "Democrats need to continue to connect the future of the Supreme Court, the impact of an expanding conservative bloc of the Supreme Court, to the issues that are impacting people in their everyday lives."
Mr. Trump's appointment of Kavanaugh, who replaced Justice Anthony Kennedy on the court, solidified the Supreme Court's 5-4 conservative majority. The rightward shift spurred by his confirmation left Roberts as the middle of the court, and in several instance the chief justice has filled the role as the swing vote, helping to deliver victories for progressives in striking down a Louisiana abortion restriction and blocking the Trump administration's unwinding of the Deferred Action for Childhood Arrivals program.
But if Mr. Trump is reelected and given the opportunity to name a third or even a fourth justice — Justice Stephen Breyer is 81 — it would cement the high court's conservative majority and dilute Roberts' impact.
"You have one more Brett Kavanaugh and it doesn't matter where John Roberts is on healthcare," Psaki said.
Roberts joined the four liberal justices in 2012 to uphold Obamacare's individual mandate, and the healthcare law will be before the Supreme Court again in its next term, which begins in October.
"Every president since Ronald Reagan has appointed two Supreme Court justices, and so I think that the long-term future of the Supreme Court, the balance of the court is on the line," Kang said.
Progressive groups have also succeeded in convincing establishment Democrats that the Supreme Court could be critical in motivating voters, made evident by its inclusion in the party's platform this year.
At the Democratic National Convention in 2016, Judge Merrick Garland, who had been nominated by President Obama to fill Scalia's seat on the Supreme Court, was hardly mentioned. But language adopted by the Democratic Convention Platform Committee and circulated by Demand Justice, which pushed for inclusion of the reforms, states that the party "recognizes the need for structural court reforms to increase transparency and accountability."
"The Republican Party has packed our federal courts with unqualified, partisan judges who consistently rule for corporations, the wealthy and Republican interests," the platform will say, according to Demand Justice. "They have undermined the legitimacy of our courts through an anti-democratic, win-at-all costs campaign that includes blocking a Democratic president from appointing a justice to the Supreme Court and obstructing dozens of diverse lower-court nominees."
Joe Biden, the presumptive Democratic presidential nominee, has also made his own promise when it comes to the Supreme Court: to nominate the first Black woman justice. Progressives are urging Biden to release his own Supreme Court list to galvanize voters, as was the case with conservatives and evangelicals reluctant to back Mr. Trump in 2016.
"People understand now in order to take meaningful steps for climate change, we're going to need a Supreme Court that's going to uphold those changes. The same with preventing gun violence and reestablishing voting rights," Kang said. "All these issues driving you to the polls are going to be dependent on the Supreme Court."