The outpouring of anger over recent Supreme Court rulings on abortion, guns, climate and Miranda rights has been stoked by a sense of frustration and helplessness that the court has become a powerful body devoid of any political responsibility. Brian Fallon aggressively attempts to make the justice system more accountable to majority opinion, not just right-wing ideologues.
Fallon was a Democratic insider, serving in leadership positions with the senator Chuck Schumer, Attorney General Eric Holder, and presidential candidate Hillary Clinton. But for the past four years, he has been a fierce and prescient underdog, launching the advocacy group Demand Justice and criticizing his own party almost as harshly as he lashed out at Republicans. Demand Justice contributed to the successful nomination of Ketanji Brown Jackson; it cultivates a diverse list of candidates for places on state and local benches; and he was ahead of the curve in calling loud and clear for an end to legislative filibuster and the expansion of the Supreme Court. “Nothing about the decisions surprised me,” Fallon says. “What surprised me was how little evidence there is that anyone on our side took advantage of the delay to coordinate our response.” Fallon spoke with vanity lounge on the Democratic Party’s longstanding strategy — or lack thereof — on the courts, the policy response to recent rulings, and how Demand Justice plans to step up its fight for court reform.
Vanity Lounge: The Supreme Court is a hot case now. But back when you co-founded Demand Justice in 2018, the judiciary was considered a political backwater, or at least a lost cause, by most Democrats. Why did you adopt it?
Brian Fallon: In a weird way this appealed to me, that people thought there was nothing you could do about it. I made the decision after the 2016 election that I didn’t want to escape to Silicon Valley and go into public affairs for a tech company or something. I wanted to stay in politics and be part of the effort to stave off the worst of Trumpism, but I wasn’t quite sure what form that would take. The issue space that was least watched was this, and it was the area where Trump had arguably the greatest impact in terms of his ability to confirm hundreds of extremely young and extremely radical people. Clarence Thomastype thinkers.
The long and multifaceted Republican and Conservative campaign to transform the courts is obviously the main reason for our current situation. But why have Democrats done so poorly in pushing back?
Party leaders and Democratic voters have deferred to the opinions of the Democratic Party’s legal elites, progressive legal elites who have argued cases before the Supreme Court as heads of the appellate practices of large white shoe law firms. Who are all progressive in their politics, but who have always stuck, no matter what, to the mythology of the Supreme Court as an apolitical institution, even as decisions that should have been seen as moments of glass – like Bush v. Gore and Citizens United — stacked. So the message was, Leave it to us, because we speak the same language as these guys. Do not consider this as an area of political organization.
Our approach [at Demand Justice] was to try to be an insurgent and to say: No, everything is not on the level. And people who tell you otherwise are simply captives of the institution. The more we blind ourselves to the reality that the court is a political actor, the more we leave ourselves vulnerable to having the court armed against us. We have to engage.
Which led you to do things that pissed off the Democratic establishment — like publicly calling for the retirement of 82-year-old Justice Stephen Breyer — and clever stunts — like putting up giant billboards showing video of Christine Blasey Ford before a Federalist Society Dinner in honor of Brett Kavanaugh. Do you approve of the protests outside Kavanaugh’s house?
I don’t question other people organizing them, as long as they are peaceful. This is a completely irresponsible branch of government isolated from the public, whose proceedings are absolutely not televised, which has no code of ethics which imposes requirements on recusal decisions. I don’t think you should be telling the people on the front lines who have to bear the brunt of the impact of these decisions that they’re not getting any redress, they don’t have a chance to protest, or that we don’t like the style of how you register your dissent.