We Need a Supreme Court that Works For All of Us

Courts Resources 07.22,21

On July 20, 2021, our interim president and CEO, Wade Henderson, testified before the presidential commission on the Supreme Court during a public meeting that explored perspectives from Supreme Court practitioners and views on the confirmation process.

Henderson emphasized the Supreme Court’s history on civil and human rights and the sweeping role it plays in our lives, and he urged the commission to center the people most impacted by the Court as it considers how to strengthen our democracy.

His full written statement submitted to the commission is online here — and below are the remarks that Henderson delivered during the public meeting.

Good morning, Commissioner Rodríguez, and members of the commission: Thank you for the opportunity to testify today. 

The late Congressman John Lewis called on each of us to remember that every generation “must do its part to help build the Beloved Community.” As you consider a path forward for our nation’s highest court, I urge you to help realize the promise of our democracy.

The Supreme Court has sweeping power over every aspect of our lives. Throughout our nation’s history, the Court has recognized our civil and human rights in decisions like Brown v. Board of Education, which ended legal apartheid in our schools. But the Court has also done tremendous harm.

In both Plessy v. Ferguson and Korematsu v. United States, the Court chose to subjugate Black and Asian Americans under the guise of promoting the rule of law. More recently, in Shelby County v. Holder and Brnovich v. DNC, a majority of justices eviscerated key provisions of the Voting Rights Act, the landmark civil rights law that prohibits racial discrimination in voting. The Court’s decisions have devastating consequences for people of color and other communities who for too long have been excluded from decision-making and the ranks of power.

Now, to understand the Senate’s advice and consent role, it is important to ground the discussion in both why and how the judicial confirmation process has changed. In recent years, Senate Republicans have rigged the process as part of a broader strategy to redraw the composition of the federal judiciary and short-circuit other democratic methods of change. Their efforts are largely in response to progress made by the civil rights movement and to maintain a system of power that benefits a privileged few.

We saw the marked shift in the Senate’s advice and consent role during President Obama’s second term. Then-Senate Majority Leader Mitch McConnell and Senate Republicans doubled down on obstruction, which reached a disgraceful peak in 2016 when Senator McConnell refused to consider President Obama’s Supreme Court nominee, then-Judge Merrick Garland. He took the unprecedented position that no president should have their nominee considered during a presidential election year. 

This raw power grab escalated across the next four years:

In 2017, President Trump selected Justice Neil Gorsuch from a curated and ultraconservative shortlist to fill that seat. Senator McConnell confirmed him by changing the rules to alter the filibuster.

In 2018, the Senate majority once again discarded norms to confirm Justice Brett Kavanaugh. The Senate Judiciary Committee obscured documents and thwarted a full FBI investigation into allegations of sexual assault.

And last year, after the passing of Justice Ruth Bader Ginsburg, Senate Republicans proceeded with speed unmatched in recent history to confirm Justice Amy Coney Barrett — while millions were already voting in a presidential election.

Now the evidence is clear: Republicans dramatically hollowed out the process to stack the Court. The new Court’s decisions will shape the direction of the law, and whether people’s rights will be recognized, for generations.

The discussion about the future of the Supreme Court — and all of our federal courts — is not an academic one. It is about humanity and dignity. We are now at an inflection point: As the commission continues its critically important work, all options for how the Court functions must be considered. We urge you to engage and center historically marginalized people who are most impacted by the Supreme Court, and to focus on strengthening our democracy.

Our nation needs judges and justices who will deliver equal justice and protect the rights of everyone — no matter their race or background. That is why The Leadership Conference and our Fair Courts Task Force are working to advance two priorities:

First, it is vital for the federal judiciary to be made up of fair-minded judges and justices who are committed to the civil and human rights of all people and who possess diverse backgrounds and experiences that will inform their role on the bench.

Furthermore, we urge Congress to pass legislation to modernize our federal judiciary by shoring up ethics and transparency. We must also undertake structural change of the judiciary and the Supreme Court, including the expansion of our lower courts.

The commission is presented with a big task, one that will help set the course for what comes next. For the Court to work for all of us, we must act — and we must act in the interest of everyone, not just the powerful few. Our communities and our democracy depend on it. Thank you.