According to a fresh Gallup poll this week, 43 percent of Americans regard the Supreme Court as “too conservative,” against 36 percent who feel that the Roberts court is an even-tempered administrator of justice. That 43 percent is a new high, per Gallup: “Before the court shifted to a 6-3 conservative advantage after Amy Coney Barrett replaced Ruth Bader Ginsburg in October 2020, no more than 33% had ever characterized it as too conservative.” But then, that conservative majority started doing things—like gut Roe—and disapproval followed. Don’t expect things to turn around, by the way. As Matt Ford noted earlier this week, the court is expected to take a rightward lurch during its next term.
I got to thinking about the Supreme Court this week after Brian Beutler invited the readers of his Off Message newsletter to engage in a thought exercise: If you could thwart MAGA and the rise of fascism, but only by “turning the Democrats’ ideological clock” back to 2005, would you take that trade-off? Moderating would mean a lot of ideological progress on the left would have to fall by the wayside (Democrats in 2005 weren’t robustly defending marriage equality, and were nowhere near President Joe Biden’s vision of a pro-worker economy). But the idea is tempting—and the Supreme Court looms large. I would not call the high court’s 2005 incarnation “good” by any stretch of the imagination. But during the transition from Chief William Rehnquist to John Roberts, the court came studded with justices—Anthony Kennedy, David Souter, Sandra Day O’Connor—who were willing to swing between ideological poles. Going back sure sounds like a good deal.
Alas, the world only spins forward. There’s no “moderation” button that Democrats might press to take us back to a more halcyon era. As provocative as Beutler’s thought experiment is, I’d prefer Democrats to think more deeply about the present moment—and more strategically about getting out of it. I don’t think we escape the fascism trap without Democrats who are willing to spend a lot of political capital, and I think those Democrats will have to commit themselves to some radical thinking along the way.
There is a place, to my mind, where Democrats can and probably should moderate. The big intraparty battles of the pre-Trump era revolved around whether Democrats should go big on policy or stay toward the center; here were the debates over Medicare for All, the Green New Deal, and taxes designed to soak the rich. This is, alas, not the moment to revive or promote these ideas—and I say that as a fervent supporter of them. That’s because they don’t stand a chance under this extremist Supreme Court, which must first be dealt with.
I spelled out some of my thinking on this matter back in 2024, at a time when Kamala Harris was being dogged by daily reports of her reversing herself or becoming suddenly noncommittal about policies she once supported in the years prior to her vice presidency. I was fairly sanguine about this state of affairs because the Supreme Court had, by then, entered its Enemy of Liberal Governance Era, and it was quite clear to me that the six-member conservative majority was simply going to stamp a line-item veto over anything a Democratic president or legislature did.
Under this judicial regime, things like Medicare for All are a complete nonstarter. Hell, so is any hyper-timid means-tested bullshit if five justices don’t want Democrats to succeed. As I urged at the time, conflict with “a Supreme Court that’s holding the policymaking apparatus hostage” is inevitable, and it is “not a fight [Democrats] can duck.”
All of which means that while Democrats might be able to pick and choose some avenues of moderation, the task of arresting and reversing the degradation of the Trump era will inevitably require a hard swerve toward a more radical type of political thinking—especially with regard to the Supreme Court. The polite norms around the Supreme Court have been obliterated. This should be apparent to everyone; every one of these shadow docket rulings where the majority semi-anonymously grants a would-be dictator more power to overthrow the Constitution only reinforces the fact that the high court’s age of respectability is over.
The Democrats who want to win back power in 2026, and win the presidency in 2028, need to embrace this conflict and nurture the growing public antipathy toward the Supreme Court. They will also have to do things that the Democrats of 2020—let alone 2005—dared not: Packing the court needs to be on the table. Reforms must be forcefully imposed. The justices need to be brought before Congress and explain themselves in regular reviews. And to get there, Democrats must engage in a content-creation campaign depicting the Roberts court as it truly is: a promoter of political corruption, a despoiler of the environment, an enemy of democracy, an institution that has pilfered wealth right from the people’s pockets.
I feel for Democrats facing this moment. Institutionalism has served them in decent stead in the recent past. But those institutions have been perverted in the Trump era and must be brought to heel and firmly restored to their civic purpose. There’s no purely moderate path to what should be the ideal “moderate” outcome: a restoring of balance to our civic lives.
But rather than look back to 2005 for solutions, Democrats must wind the clock back still further, to 1862, and find their purpose in this passage from President Abraham Lincoln’s second State of the Union address: “We can succeed only by concert.… The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise—with the occasion. As our case is new, so we must think anew, and act anew. We must disenthrall ourselves, and then we shall save our country.” The Democratic leaders of the future will be those who disenthrall themselves of the dogmas of the quiet past, and face a moment piled high with difficulty with courage and conviction.
This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.
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