WASHINGTON — At their four-day convention this week, Democrats quietly adopted a plank in their 2020 platform calling for “structural court reforms” alongside a denunciation of Republicans for preventing President Barack Obama from filling a vacancy.
But almost none of the speakers at the virtual extravaganza mentioned the Supreme Court.
The omission was alarming to some progressives as Justice Ruth Bader Ginsburg, the leader of the liberal wing, is 87 and battling a recurrence of pancreatic cancer, while Justice Stephen Breyer, a fellow Democratic appointee, is 82. Another four justices are old enough to collect Social Security.
“We have two liberal justices over 80 years old, which means this election will be make or break for the future of the Supreme Court. But you wouldn’t have known it from the speeches this week,” said Brian Fallon, the executive director of the advocacy group Demand Justice and a former spokesman for Hillary Clinton’s 2016 campaign.
“None of the proposals discussed this week, even if signed into law by a President Biden, will stay on the books for very long given our current Supreme Court,” he said. “And yet we heard so little on the issue.”
Some activists saw it as a lost opportunity to rally voters who care about issues such as abortion rights, voting rights and campaign finance. The winner of the 2020 election could appoint several justices and shape the high court for the next generation.
“It was a missed opportunity and one that was likely rooted in the convention's misplaced focus on wooing disaffected Republicans and so-called moderates,” Neil Sroka, a spokesman for the progressive group Democracy For America, said.
In his speech Thursday accepting the presidential nomination, Joe Biden didn’t discuss judges or tell the audience about his promise to put the first black woman on the Supreme Court. He, like most other speakers, downplayed policy in the hopes of offering a unity-themed message aimed at attracting voters across the ideological spectrum who disapprove of President Donald Trump.
The Supreme Court was not mentioned in speeches by Biden's wife, Jill Biden, vice presidential nominee Kamala Harris, former President Barack Obama, former first lady Michelle Obama, former President Bill Clinton, 2016 nominee Hillary Clinton, 2020 runner-up Bernie Sanders, and ex-candidates Pete Buttigieg and Elizabeth Warren.
The most notable reference came from Senate Minority Leader Chuck Schumer, D-N.Y., who vowed that Democrats will “restore a Supreme Court that looks out for people, not corporations” if they win the election.
Biden currently leads Trump by 8.6 points nationally, according to the FiveThirtyEight average of polls, and analysts say the Democrats' prospects of capturing control of the Senate have been improving.
The 5-4 conservative majority, solidified by Trump picks Brett Kavanaugh and Neil Gorsuch, has relegated liberals to grabbing some victories where they can. A Supreme Court that was arguably less conservative hindered Obama’s initiatives on health care and climate change, two major themes throughout the convention.
Support for immigration was emphasized throughout the convention, but little was said of the Supreme Court blocking Obama’s 2014 actions to suspend deportations for parents of Americans or permanent residents, or of the court upholding Trump’s travel ban from several majority-Muslim nations in 2018.
And the survival of Roe v. Wade and its subsequent precedents upholding abortion rights is uncertain.
“We know that any political and legislative gains we make could be nullified by the Trump Courts,” Ilyse Hogue, the president of NARAL Pro-Choice America who offered the courts plank as an amendment to the platform, said in an email. “The Democratic party platform and Joe Biden have committed to that conversation as a part of the puzzle of restoring democracy and we know that this ticket will lead on restoring balance to the Courts.”
Demand Justice aired an ad on cable news during the final night of the convention telling viewers "the future of the Supreme Court is on the line" after Trump "hijacked" it.
The lack of discussion about the Supreme Court is unlikely to be replicated at the GOP convention next week. Trump has confirmed more than 200 lifetime-appointed judges to the courts, many of them young and conservative, a statistic he and his allies often tout to rally voters around his re-election bid.
“The big problem,” Sroka said, “is that not talking about the courts problem will undoubtedly lead to Republicans suggesting that, when Biden wins, it was just a victory over Trump and not a real mandate for a broader progressive agenda, including a court that reflects progressive values.”