Conservatives are dominating the fight for America’s federal courts. In just one term in office, President Donald Trump managed to replace one-third of the U.S. Supreme Court, transforming what was already a reliably right-leaning institution into a burgeoning conservative juggernaut. The Court has now veered so far to the right that Brett Kavanaugh, a longtime Republican operative who once blamed credible sexual assault allegations against him on an elaborate plot to exact “revenge on behalf of the Clintons,” is somehow the median vote.
The box score gets grimmer from there. When he left the White House, Trump had appointed about one-third of active appeals court judges, and more than a quarter of district court judges. In eight years, President Barack Obama oversaw 55 successful appeals court nominations; in half the time, Trump got to 54, and I am sure it will shock you to learn that not a single one is Black. His nominees were, on average, 47 years old when announced, meaning that some of the homophobic bloggers and executive power absolutists tapped by a president who received some 3 million fewer votes than his opponent will be shaping the law for generations to come.
This is not an accident; it is the product of a conservative legal movement that has spent decades working to recast reactionary politics as the inevitable outcome of a neutral legal process. This effort is propped up by a robust academic marketplace for “originalist” legal scholarship, which insists that, in a remarkable coincidence, the 18th-century Framers would have definitely favored outcomes that reflect 21st-century conservative sensibilities. Without a shred of irony, a chorus of right-wing media voices at once reifies this framework while railing against the scourge of “judicial activism,” which is basically legalese for “decisions conservatives don’t like.” For the foreseeable future, the end of each Supreme Court term will offer this 6-3 conservative supermajority another chance to chip away at voting rights, abortion rights, whichever set of cherished rights and freedoms they elect to target next.
The bottom line here is that liberals, Democrats, progressives, and every other group that comes down somewhere on the left side of the ideological spectrum are absolutely getting their teeth kicked in right now. And although Trump’s presidency threw the ongoing democratic crisis of the federal judiciary into sharp relief, the left has been losing this fight for generations. Not since the Warren Court of the 1950s and 1960s has the Court been anything remotely resembling a robust progressive force. Given that five of its six conservatives were appointed by Republican presidents who first took office after losing the national popular vote, absent a seismic change in the Court’s composition or structure, I would not bet on a redux taking place anytime soon.
Photo by Jabin Botsford/The Washington Post via Getty Images
You would not learn any of this, however, from establishment legal media, whose luminaries remain unable or unwilling to write about judges as the political actors they are, instead of the solomonic arbiters the press corps imagines them to be. Nor do you hear about it from most liberal academics, who never tire of writing soaring paeans to people with whom they supposedly disagree on every matter of substance. Last fall, as Republicans raced to confirm Amy Coney Barrett before an election in which they lost control of both the Senate and the White House, Harvard Law School professor Noah Feldman was ready to go to the mat for his former co-clerk. “I’m going to be confident that Barrett is going to be a good justice, maybe even a great one—even if I disagree with her all the way,” he gushed in an op-ed titled “Amy Coney Barrett Deserves to Be on the Supreme Court.” The prevailing liberal response to decades of getting dunked on is to heap praise on conservatives for their impressive vertical leap.
Balls & Strikes offers a different perspective: one that acknowledges the real-life stakes of the Court’s decisions instead of treating them as esoteric academic exercises, and that centers the law’s impact on the millions of people who are not elite appellate lawyers or constitutional law professors tinkering with the syllabus before class starts in the fall. Balls & Strikes borrows its name from now-Chief Justice John Roberts, who famously outlined his vision of judicial modesty during his Senate confirmation hearings by comparing his role to that of a home plate umpire. “I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability,” he promised. “And I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”
This metaphor, of course, omits key facts that every Little Leaguer knows: Umpires use different strike zones, and are often flexible in applying them. They are humans who make mistakes, miss calls, hold grudges, and play favorites. They are entrusted with a tremendous amount of power, and near-unlimited discretion about when and how to exercise it. Balls & Strikes’s coverage rejects the wrong and dangerous myth of the objective, apolitical judiciary, and the notion that a given outcome is just or desirable or legitimate simply because a person wearing a robe managed to string together a few sentences about Why The Law Compels It.
With all that in mind, Balls & Strikes will publish commentary about the judicial nomination and confirmation processes, the ongoing debate over court reform proposals, and other stories at the intersection of law, policy, and politics. By contrast, Balls & Strikes will not publish unhinged Twitter threads that make prominent use of Zillow screenshots and decades-old high school yearbooks in a harebrained attempt to save the Supreme Court nomination of a partisan operative-turned-federal judge who faces credible accusations of sexual assault and lying under oath, just to take a randomly-selected example.
The prevailing liberal response to decades of getting dunked on is to heap praise on conservatives for their impressive vertical leap.
In addition to our editorial coverage of the Court and the courts, Balls & Strikes will also maintain a set of databases related to the composition of the federal bench. For information about the nominees and the pace of Senate confirmations, click here; to learn more about how Democratic senators are soliciting and recommending nominees, click here; and for an interactive map showing which party’s nominees control which lower federal courts, click here. Shortly after taking office, President Biden made an ambitious pledge to diversify the federal bench, not only in terms of racial, ethnic, and gender diversity, but also by nominating more judges with professional experience in public defense and civil rights law. These tools will track efforts to fulfill this promise.
Balls & Strikes is edited by me, Jay Willis. Previously, I worked as a staff writer at GQ, and as a senior contributor to The Appeal. Before that, I practiced law in Washington, D.C. and Seattle, which I bring up only when being able to say “Actually did you know I’m a lawyer?” is convenient to my argument.
Our rotating cast of contributors includes some of the sharpest writers and thinkers on the legal left. We’re launching today with essays from Elie Mystal, on the Court’s use of the shadow docket to do its most dangerous work; Madiba K. Dennie, with a closer look at the casual cruelty of the Court’s eviction moratorium decisions; Lisa Needham, on the strenuous right-wing effort to paint Roe v. Wade as unpopular. In the coming days, look out for Rhiannon Hamam, on the Democratic response to Texas’s latest anti-choice stunt law; The Law Boy, on the inane academic debate over what the law’s implementation really means; and Adam Cohen, on the conservative embrace of “judicial activism.” I also might review Stephen Breyer’s dumb book, if I can make myself stop tweeting out pictures of the worst excerpts for long enough to put together some coherent thoughts on the subject.
If this sounds like a crew you’d like to be a part of, great news: We are looking to hire a full-time staff writer to cover the Court, the courts, judicial nominations, and everything that’s wrong with the legal system, which is not a short list. You can and should apply for this job here.
Of course, we’ll also publish essays from guest contributors; our first is from Rep. Mondaire Jones, on the Roberts Court’s diligent efforts to normalize racism in America. You do not, however, have to be a real-life member of Congress to write for Balls & Strikes. A serious problem in legal media is that it’s very difficult to get paid to write about courts and the law unless you have a track record of getting paid to write about courts and the law, which helps explain why so many pundits make the same mistakes over and over again. We want to include more voices in the proverbial Discourse, especially from writers whose perspectives are traditionally underrepresented at legacy outlets. So, if you have an idea you’d like to pitch, please do so using this form. If you, too, are fed up with a broken system that has more or less transformed representative democracy into conservative oligarchy, we would be happy to pay you money to write about it.
Balls & Strikes is sponsored by Demand Justice, a nonprofit organization that works on court reform efforts, judicial nominations, and the like. All opinions expressed on Balls & Strikes are solely attributable to the bylined author, and do not necessarily represent the views or reflect the specific advocacy goals of Demand Justice. Although Balls & Strikes is not planning to run ads at this time, if any direct-to-consumer underwear manufacturers or at-home meal kit providers are interested in reaching a growing audience with passionate feelings about the intellectual bankruptcy of Antonin Scalia’s originalist legal philosophy, my DMs are very much open.
In the meantime, we welcome your feedback! You can reach out with questions, comments, or suggestions at [email protected]. You may send complaints, too, but only if you say one nice thing for every criticism you offer, because nothing is more important than the even-handed administration of justice.
