THREAT ASSESSMENT
An anti-democracy faction has hijacked and now controls a durable 6-3 majority on the U.S. Supreme Court. This faction is the product of a tightly coordinated 50-year special-interest campaign to advance three major agendas: long-held reactionary hostility to Brown v. Board of Education and racial equality, which sparked modern “originalism”; corporate domination and deregulation following the plan laid out in the infamous 1971 “Powell Memo”; and theocratic religious nationalism, long organized around the goal of overturning Roe v. Wade, but not intending to stop there.
Recognizing the deep unpopularity of these goals and the impossibility of achieving them through the political process, the interests behind this agenda turned to the unelected, unaccountable courts to achieve them. Under Trump, this effort came to fruition as judicial selection was “insourced” to Leonard Leo’s Federalist Society, whose hand-picked judges and justices have eagerly delivered for their benefactors with sweeping repeals of 20th-century economic and social progress. Unconstrained by legal norms and insulated by life tenure, these justices are rewriting the Constitution to aggrandize their power, destroy fundamental rights and freedoms, and critically—with relentless assaults on the Voting Rights Act and other protections against racial and socio-economic discrimination in voting—break the levers of democratic pushback and accountability.
Unchecked, this faction is exploiting the judicial power to secure indefinite control of America’s governing institutions, ushering in a repressive anti-democratic “juristocracy”—a political system in which judicial authorities exert predominant control over public policy and governance, occurring when courts overstep in their traditional role of interpreting and applying the law impartially. A juristocracy undermines democratic processes by allowing unelected, unaccountable judges to make decisions elected representatives should make. Practically, no meaningful democratic progress can be made if this Supreme Court’s power remains unconstrained.
Americans of all stripes are alarmed at the outcome. A recent AP poll found that 70% of Americans believe that the justices are putting ideology before impartiality. And that was before the justices’ shocking 6-3 decision to grant sweeping immunity from criminal prosecution to Donald Trump and future presidents, fundamentally eroding the Constitution’s checks and balances.
Background
In the legal community, even traditional conservatives have been sharply critical of the Court’s latest decisions and of the justices’ unethical conduct. Yet, even as leading voices across the ideological spectrum criticize the Court’s recent rulings, much of the legal establishment either continues to insist that the Court is fundamentally “principled” or refuses to question the basis of the Court’s partisan decisions, wedded to the notion of judicial supremacy and scared of eroding what little remains of the Court’s institutional legitimacy.
Elected leaders, the mainstream media, the legal establishment, and other drivers of elite influence have long underestimated the threat the right-wing legal project poses to our democratic system and shared prosperity. These actors mistakenly assumed that the right-wing judicial movement was acting in good faith. By treating this as an intellectual rival, rather than as a threat to democracy, the liberal elite allowed a pernicious strain of raw-power judicial supremacy to ascend. And by basing our politics around preserving the New Deal order and hard-won 20th-century precedents, the liberal legal establishment helped foster a mythology that the Court is a neutral arbiter of law and protector of the marginalized—even though for most of its history it has aided regressive agendas.
Litigation and legal policy advocacy remain important. But relying on lawyers and looking to the courts to protect and advance our rights and freedoms has resulted in an imbalance of powers among the branches—and a concentration of judicial power relative to Congress, in particular—that is not only contrary to the framers’ design but inimical to functional democracy and democratic progress.
These choices have left pro-democracy advocates seemingly powerless to confront a branch that has been weaponized by self-interested outside actors. There is a pervasive sense of despondency and helplessness among many voters—and lawyers, activists, and elected officials—about the seeming impossibility of constraining the judicial tyrants who have taken control of our democracy.
At Court Accountability, we are charting a different course.
How We Got Here
As a first step, the people must empower Congress—itself deeply flawed but the most democratic of the branches—to reassert its power to check the courts. To achieve any of the various reforms that could constrain this runaway majority—ideas like term limits, enforceable anti-corruption laws, and limits on the Court’s jurisdiction—and to protect other priorities like the restoration of voting rights and reproductive freedoms, we must provoke a sharp turn away from our historical deference to absolute judicial supremacy and build political support and momentum around a democratizing constitutional vision.
In short—just as anti-regulatory interests and the religious right galvanized their base around the goal of overturning Roe—the pro-democracy coalition must build a political movement capable of challenging the Court’s current direction and willing to pressure and empower Congress to protect the people from a corrupted Supreme Court majority that is wreaking destruction.
With the massive electoral backlash to Dobbs, bipartisan voter outrage at the justices’ lack of accountability for unprecedented corruption over the last year, and now, the public alarm over the Court majority’s sweeping removal of checks or balances on criminal presidents, the tinder for this movement is sitting right there. Pro-democracy policymakers must immediately seize this opportunity to light it. Court Accountability exists to make sure they do just that.