Since the U.S. Supreme Court decided Brown v. Board of Education, the American Right has dreamed of ending the struggle for the equality and justice promised, but not yet achieved, under our Constitution’s many glittering generalities: If they could just lock down the Court, the Right has believed, they could use it as both a shield to hold off advocates of justice and also a sword to slash away at progressive victories achieved through executive action, legislation or in the states.
Now, after a series of unprincipled and outrageous maneuvers to steal seats and ram through a tainted nominee, they think they are about to win this decades-long battle by seating a justice who would provide a reliable sixth vote for the Right.
They could not be more wrong. We know, because as the President of the American Constitution Society (ACS), the nation’s largest organization of progressive law students and lawyers, and as a law student at Marquette Law School and the President of the ACS chapter there, we have heard the voices of our colleagues.
What they are saying could not be clearer. No alliance of billionaires, no reactionary political movement and no court captured by right-wing and corporate interests is going to steal our future. The law students and lawyers of today are going to continue the fight for justice, as generations before us have. No doubt we will suffer setbacks and endure many frustrations.
We will, however, draw upon the words of the abolitionist firebrand Wendell Phillips. We are in earnest. We will not equivocate. We will not retreat a single inch. And we will be heard.
We will also take inspiration from the towering figure whose untimely passing gave rise to the current vacancy on the Court, Justice Ruth Bader Ginsburg. Justice Ginsburg was one of the greatest and most influential lawyers and public servants of the past century. We will follow her down the path she blazed, and then, as she would have wanted, blaze paths of our own.
The stakes in this fight could not be higher. In just a few weeks, on November 10, the Supreme Court will for the third – third! – time hear arguments in a case in which the opponents of healthcare for all seek to deny this basic human right to millions of Americans. They seek to win in the Court what they could never achieve in Congress, the effective repeal of the Affordable Care Act.
We must lift our voices, engage the American people and make sure they know of the Court’s terrific power to shape their lives, and truly frightening ways in which the Right intends to wield that power. The threat goes far beyond their obsession with destroying the Affordable Care Act. All the protections our Constitution empowers the government to provide — clean water, clean air, food and drug safety, regulation of the health care and health insurance industries, consumer protections and workers’ rights — are on their wish list for elimination. As lawyers and law students we understand this, and we will tell the people.
During the intervening time, The Right will also drive forward its ruthless and lavishly funded campaign to seat that sixth justice, who they believe, will so effectively foreclose all avenues for progressive legal advocacy that the current generation’s journey to bring us closer to justice and equality will end before it starts. Here too we will resist them. We declare that the Senate must not address any nomination until after the Presidential Inauguration on January 20, 2021.
American have long deferred to a Court that was accountable to the Constitution. Their reaction to one that is accountable only to an ideological faction will be very different.
The ancestors of each of us are from a part of the world where people have long been fond of their proverbs. There is one that goes: “The best among you are those who plant trees knowing you will never enjoy the shade.” Although such is the fate of all who are in the business of planting trees, we expect that through our labors, we will enjoy the shade of justice and equality yet in our time. In fact, we insist upon it.
Russ Feingold is the President of the American Constitution Society. He served as a United States Senator from Wisconsin from 1993 to 2011 and a Wisconsin State Senator from 1983 to 1993.
Ali Mahmood is the president of the Marquette School of Law ACS Chapter.