The election to shape the course of the current Supreme Court already happened — it was 2016, with one seat left open by Mitch McConnell’s partisan discipline and two Democratic appointees in their 80s. Now that liberals’ worst nightmare has happened with Ginsburg’s death, Democrats could deploy the insight conservatives long ago hit upon: It’s easier to run against the Court than to preserve the status quo, and your base might care if they lose much of what they hold dear. Or they could do nothing.
Surveying the wreckage, you might ask what took the lawyers so long. Molly Coleman has a few theories. She was one of those starry-eyed students who showed up at law school, in her case Harvard, having absorbed what she calls the “lofty views of ourselves as advancing justice. And you very quickly learn that law school is about power.”
There, the cultural veneration of the courts and judges as infallible runs deep. “Lawyers are raised to believe that lawyers are the heroes,” Christopher Jon Sprigman, a professor at NYU Law School, told me. “And the ultimate lawyer heroes are lawyers in robes.”
Coleman realized, watching her cohort, that the romantic notions of lawyers as Atticus Finch — the principle that everyone deserves legal representation and lawyers shouldn’t be judged by their client’s deeds — was being deployed on behalf of getting rich: “It’s not the person accused of a crime,” she said. “It’s Exxon Mobil.” In 2018, her work organizing against forced arbitration clauses, which among other effects let sexual harassers off the hook, led Coleman to co-found the People’s Parity Project; she’s now its executive director, overseeing multiple campus chapters.
Their work is also up against a clubby social world. Witness former Obama acting solicitor general Neal Katyal vouching for Gorsuch, Yale Law’s Amy Chua calling Kavanaugh a “champion” for women as her daughter was poised to clerk for him, and more recently, Harvard Law professor Noah Feldman devoting a Bloomberg column to saying that Coney Barrett, with whom he clerked on the Supreme Court 20 years ago, was not only “brilliant” but a “sincere, lovely person.”
“The belief in procedural fairness is coupled with a deep deference to institutions and power,” says Leah Litman, a professor at the University of Michigan and co-host of the podcast Strict Scrutiny. A former clerk for Anthony Kennedy, she’s repeatedly broken the omertà by speaking publicly about sexual harassment at the hands of one of Kennedy’s feeder judges, Kavanaugh mentor and former Ninth Circuit judge Alex Kozinski, and for more accountability for judges and lawyers generally. She’s not alone; Yale Law students recently called for Chua’s husband, Jed Rubenfeld, to be removed instead of suspended for sexual harassment, after years of a whisper network.
Litman recently decried the fact that “elite circles of the legal profession seem deeply uncomfortable with doing anything that might hold other elite lawyers accountable for their disregard of various norms or principles.” She was talking about the Trump lawyers who helped enact child separation — former deputy attorney general Rod Rosenstein has returned to Big Law and is on a speaking tour — but the same could be said for nominations and for the courts themselves.