By Chris Satullo
Indignation and despair. Those are the dominant emotions that flare inside progressives when they behold the blatant hypocrisy, naked partisanship and ethical blindness now on display at the U.S. Supreme Court.
Indignation is legitimate in response to the growing evidence that several members of the high court (looking at you, Sam and Clarence) are nothing more than greedy, partisan hacks. They’re happy to slurp at the billionaires’ trough while they try to enforce their narrow, angry, personal vision of what God wants America to be.
Indignation is also justified when you view how easily Samuel Alito’s and Clarence Thomas’ more ethical conservative colleagues will abandon their supposed fervor for “textualism” when that would be inconvenient to Donald Trump or the political party he now owns. When the clear text of the Constitution is unhelpful to MAGA dreams, well then, it’s clearly time for some creative judicial activism from the right.
And, yes, it’s hard to keep despair from creeping in when you stare at the math – a 6-3 pro-MAGA majority with lifetime tenure and mostly robust health.
This means that, no matter how principled Chief Justice John Roberts might be, he perpetually must find some way to drag one of his colleagues in the right-wing bloc over to his side to stave off disaster. No matter how many progressive presidents or Congresses the people might elect, this crew will always stand in the way of the desired progress.
So, indignation and despair…yeah.
But indignation is not a strategy. Neither, very emphatically, is despair.
Here’s what is:
Start doing systematically what conservative activists have been doing effectively for years while progressives slept. When the federal courts prove unfriendly, use state constitutions and state courts to press forward with your vision.
If it’s a given (hint: it is) that the nation’s highest court will interpret narrowly the rights of voters, women, ethnic and faith minorities, LGBTQ people, consumers, defendants, prisoners, and the planet, then look to the 50 state constitutions for leverage.
Those state constitutions have the power to define rights enumerated in the national constitution more broadly – and often do. Also, they sometimes establish rights not even mentioned by James Madison et al. A classic example: the right to an equal and thorough education, a version of which is enshrined in many state charters – no matter how tepidly it often is enforced.
I’ve often argued that liberals have been lulled and misled by the historic victories they’ve won in previous U.S. Supreme Courts very different from this one – in cases such as Roe v. Wade, Brown v. Board of Education, and Miranda. A Democratic party often dominated by lawyers, and their habits of thought, has fallen into the undemocratic habit of seeking to hit four-run homers in federal court, rather than pursuing the tedious small ball of winning victory after victory state by state in the democratic trenches and the state courts.
Victory via the watershed federal ruling certainly can come more swiftly, but it can also be more illusory (Brown) or more unstable (Roe).
Another drawback: Federal rulings achieved on novel grounds, running well ahead of American public opinion (again, Roe), can become political organizing gold for the losing side – as conservatives now, in turnabout as fair play, are learning re: Alito’s ridiculous Dobbs opinion overturning Roe.
Conservative activists, having felt their own indignation and despair at the Warren and Burger courts back in the day, long ago committed themselves to the state-by-state approach, patiently working to put their true believers onto school boards, town councils, state legislatures and elected state courts, working from the grass roots up.
Today, who can argue that didn’t work?
Here’s one very good reason why liberals haven’t flocked to the state-by-state, “federalist” approach to establishing or expanding rights: the truth that state-by-state variance in defining core rights is closely tied in our history to something evil and ugly: the defense of slavery.
But it’s important to remember that state courts interpreting state constitutions that were written in more modern moments than 1787 have also produced some important victories that made liberals beam. For instance, the path to the federal Obergefell ruling on gay marriage begins with a 1999 Vermont state court ruling that led to its blessing of gay civil unions, which in turn set the stage for the landmark 2003 Massachusetts state court ruling validating gay marriage.
Many state constitutions have clear and expansive definitions of voter rights, which have been the basis for key victories in the battle against gerrymandering – the pernicious partisan practice which the U.S. Supremes show little inclination to confront (perhaps because the GOP has proved to be masters of the dark art?). I toiled four years in the anti-gerrymandering fight in Pennsylvania, which made a huge advance when the state Supreme Court interpreted its state constitution’s voter-rights language properly.
Meanwhile in many states, criminal defense attorneys are pressing cases about capital punishment, harsh sentencing and prisoner abuse, relying on their state charter’s clearer language about “cruel and unusual punishment.”
It’s not just that some state constitutions are more congenial to rights-based arguments. They are also generally much easier to amend than the U.S. Constitution. Change often can come by statewide referendum, bypassing the resistance of gerrymandered state legislatures dedicated to preserving the status quo.
Since Dobbs, reproductive rights advocates have already won six of those referendums while losing only one, with four more scheduled this fall. These ballot measures offer the potential for major corollary impact on the elections for president and Congress.
Sure, it’s nice to get what you want in one sudden swoop – and have it apply across the land – by getting a panel of federal judges to agree with you. That option is always there, but the happy result is rare and hard to make stick. You need also to be willing to do the slow, patient, often frustrating state-by-state democratic slog.
Another paradox (err, maybe, hypocrisy) lurks in my argument here: Along with many liberals, I’ve long argued that electing judges – as many states, including my own Pennsylvania, do – is a terrible idea. And it is. But it may be, in this moment of high court mischief, a terrible idea whose time has come.
The Pennsylvania Supreme Court that knocked down a blatant GOP gerrymander of the state’s congressional map had a new Democratic majority fueled by labor money poured into judicial elections. And in Wisconsin, a newly elected Democratic justice was the key to scrapping an equally blatant legislature gerrymander – even as GOP leaders yearned openly to impeach her before she’d even written a single opinion.
It’s going to be a messy slog full of fits and starts, but the effort to rebalance the scales of justice in this land, thrown out of whack by Alito, Thomas et. al., is showing some encouraging early returns.
Let me conclude with a pretty vision:
Some day soon, if this fight goes well, the distinctions among states – those that protect civil, voter, consumer, student and housing rights, plus the right to a planet that is not broiling vs. those that don’t – will become vivid. So vivid that some young techie, noticing all this, will create a simple, powerful “Where Should I Live?” app that people can use to figure out which states are places where they might want to live, work and raise a family. Millions of America’s smartest, most talented, most civic-minded young people will use the app and rely on what it tells them.
And those states will be the ones that attract the kind of creative, collaborative, educated, reliable worker that successful firms covet. So, the young workers – and the companies that need them – will flock to the states where state constitutions and courts guarantee such important rights – while evolving to meet the challenges of modern life, rather than petulantly resisting them.
While these states thrive, retrograde ones will languish – creating agitation among some of their citizens, at least, to emulate their more successful neighbors.
One final paradox alert: When that happens, the workings of the capitalist marketplace – currently so scorned by so many progressives – will help lock in the results of this state-by-state progressive triumph.
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Chris Satullo, a civic engagement consultant, is a former editorial page editor/columnist at The Philadelphia Inquirer, and a former vice president/news at WHYY public media in Philadelphia