Washington Post columnist Perry Bacon suggested on Sunday that the best way to influence conservative judges and justices is to publicly shame them.
Bacon expounded definitively that “there is only one way to rein in Republican judges” and it’s by “shaming them.”
“America’s judiciary is dominated by conservatives issuing an endless stream of rulings that help corporations, the rich and the bigoted while hurting working-class people, women and minorities in particular. Biden’s lower-court appointees must follow the precedents set by the Republican-dominated U.S. Supreme Court or their rulings will be overturned. Meanwhile, the high court usually allows very-right-wing opinions issued by lower-level conservative judges to remain in place,” Bacon wrote. “So at least in the short term, there is only one real option to rein in America’s overly conservative judiciary: shame.”
He continued, “Democratic politicians, left-leaning activist groups, newspaper editorial boards and other influential people and institutions need to start relentlessly blasting Republican-appointed judges. A sustained campaign of condemnation isn’t going to push these judges to write liberal opinions, but it could chasten them toward more moderate ones.”
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While Bacon’s preferred ways to reform the federal bench such as “term limits for Supreme Court justices,” “court-packing” and “limitations on federal judges’ ability to invalidate legislation,” the columnist wrote that “[w]ith little ability to formally limit the power of conservative judges, there are only informal means left.”
“But the real goal is to make Republican judges less conservative in their rulings right now. Why would that happen? Because many judges care deeply about their reputations. They want to be seen more as umpires than politicians. I’m not guessing — several Republican-appointed Supreme Court justices have complained about being cast as Republican partisans,” he added. “Roberts and his colleagues are acting like Republicans, not judges — and Democrats should say that loudly and often.”
In the aftermath of the Dobbs decision leak in May, several protests have taken place in front of the Supreme Court justices’ homes. Tensions surrounding this issue eventually led to an assassination attempt on Justice Brett Kavanaugh. Despite the threat on Kavanaugh’s life, Bacon insisted that this should not dissuade efforts to “shame” justices.
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“There will be arguments that such high-profile criticism would put judges in physical danger. I obviously oppose violence. But judges are powerful figures setting policy — they should get as much scrutiny as elected officials,” Bacon wrote.
More importantly, he argued that politicians and protesters should not be afraid to label judges as “Republicans” despite their efforts to remain unbiased.
“We should describe the impact of Republican judicial rulings in straightforward terms. For example, ‘The Republican judges are making it easier to discriminate against gay and lesbian people’ (what the judges describe as protecting religious freedom),” Bacon described.
Bacon went as far as saying former President Trump was right when he publicly criticized judges.
“In their thinking about the judiciary, Democrats should be more like Trump. While in office, Trump criticized a ruling he didn’t like by casting the judge who wrote it as an ‘Obama judge.’ Roberts then issued a sanctimonious statement, ‘We do not have Obama judges or Trump judges, Bush judges or Clinton judges,'” Bacon wrote. “But at least right now, Trump is right.”
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After the Supreme Court decision leaked in May, the Washington Post editorial board previously discouraged readers from excessive protesting arguing, “leave the justices alone at home.”
“The right to assemble and speak freely is essential to democracy. Erasing any distinction between the public square and private life is essential to totalitarianism. It is crucial, therefore, to protect robust demonstrations of political dissent while preventing them from turning into harassment or intimidation,” the editorial board wrote.