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Right-wing Courts Aim to Change the Rules

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Men and women, Black and white, wearing ministers’ collars, fists up and mouths open to shout. Signs say “My faith does not discriminate.”

Having captured the Supreme Court, the right could both whittle away progressive policy wins and reset the background rules.

The federal courts are the brick wall any number of progressive victories may barrel into. Already, federal judges are exercising a kind of veto, starting out the gate with a bad ruling on the Biden Administration’s partial pause on deportations. The Supreme Court may soon drive a “colorblind” dagger into what’s left of the Voting Rights Act, and may also radically expand the power of property in a case targeting farmworker unions. It’s not just federal legislation at risk. Our state and local wins may be vulnerable, too.

If thinking about power is key to organizing, the federal courts must be part of that thinking.

Federal courts & levels of power

“We can think of power as operating on four levels,” K. Sabeel Rahman writes: individual power; power of organized resources; structural power; and ideological/narrative power. If most policy fights happen at the second level of power, it’s at the level of structural power that the “background rules” are set. These background rules determine how political structures operate, how money flows to which institutions, who can participate in decision-making, and so on. As Rahman explains, the right’s success in amassing money and power is owed in large part to their attention to structural power and ideological/narrative power.

The federal courts have been a big object of this attention, with the conservative legal movement creating an entire apparatus for securing federal judgeships. On one hand, the federal courts are a source of structural power – take, for example, cases on voting rights, campaign finance, unions, and the powers of federal agencies. Plus, a decision in one case may lay the groundwork for further shifts in the background rules in later cases, as with the series of decisions chipping away at the ability of public workers’ unions to collect fair share fees.

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Federal courts can also be a narrative/ideological battlefield, with cases becoming a staging ground for narrative strategy on race, ownership, government, the meaning of freedom, and much more. If the right has been ambitious in its legal claims with regard to structural power, it has also used the courts to engage in meaning-making on fundamental questions like these.

Fulton & structural power

A case now before the Supreme Court shows us what this looks like in practice.

Three years ago, a reporter at the Philadelphia Inquirer discovered that two private agencies hired by the city to certify foster parents had policies to reject same-sex couples on religious grounds. This violated the agencies’ contract with the city, which incorporates Philadelphia’s anti-discrimination ordinance. Catholic Social Services (CSS) refused to stop discriminating and instead filed a lawsuit. Now, CSS wants the court to throw out decades-old First Amendment precedent and require Philadelphia to resume contracting with CSS for foster-parent screening while CSS continues to discriminate.

 Fulton v. City of Philadelphia, heard by the U.S. Supreme Court in November 2020, is one of a series of cases in which religious conservatives have moved to hollow out the rights of others through religious accommodations. By “creating zones of legal exemption,” writes Political Research Associates’ Frederick Clarkson, “the Christian Right seeks to shrink the public sphere and the arenas within which the government has legitimacy to defend people’s rights, including reproductive, labor, and LGBTQ rights.”

A lot’s at stake here. Having captured the Supreme Court, the right has an opportunity to both whittle away progressive policy wins and reset the background rules. From this perspective, what CSS wants is deeply anti-democratic. CSS isn’t trying to protect the right of individuals to practice religion, or the right of individual foster parents to teach their faith to foster children. CSS wants the power to hijack a public program to discriminatory ends that the public has chosen to prohibit. As Ian Milhiser puts it, “Fulton is not a case about whether private citizens can refuse service to LGBTQ people [which is bad enough]. It is a case about whether the government may refuse to discriminate against LGBTQ people.”

Fulton & narrative power

Fulton also gives us a glimpse of some of the narrative work of one conservative legal organization. The group behind the case has crafted a pluralist, multiracial picture of its causes, arrayed around the principle of religious liberty. A website dedicated to Fulton celebrates diversity and the “freedom to foster” and asks site visitors to help with social media, while the organization’s main website emphasizes that the group doesn’t represent only Christians (in contrast to some other legal organizations of the Christian right). Some of their cases most of us would support.

But it’s important to note how firmly this group is embedded in the conservative legal world. One of its major successes is Hobby Lobby – the Affordable Care Act contraception case that secured religious rights for corporate employers, transforming them into what Wendy Brown has called “mega-persons,” and reflecting and helping entrench a radical reconceptualization of religious liberty. The group also represented a public magistrate who refused to marry queer couples and filed an amicus brief opposing union fair share fees in Janus.

Another fact worth pointing out: among the group’s board members is the Federalist Society official who led selection of judicial nominees for recent Republican administrations. The Federalist Society itself has been the core of the right’s legal architecture, and its members a wellspring of some drastic rightward shifts in constitutional doctrine. Fulton, for all the liberal rhetoric, could lead to another such shift – one dressed in the language of striking a “balance” between the rights of queer people and the rights of the religious.

A generational contest

Speaking on Frontline Dispatches in January, Tarso Luís Ramos described the work of strategists on the right to create separate infrastructures for various factions – from libertarians to Christian conservatives – and bringing those factions into coalition over time.

That effort is evident now in the federal courts. The right’s coalition, no matter how occasionally uneasy, commands a strong majority in the Supreme Court and has secured appeals-level majorities. The opinions coming from this deeply conservative court convey the justices’ beliefs related to race, religion, gender and sexual norms, and a host of other questions, reflecting decades of cross-pollination of ideas, language, and strategy between the conservative legal world and the broader conservative movement. In terms of governance, capturing the courts may be no less significant than winning the presidency or Congress, even though to almost all of us the workings of the federal courts feel even more distant.

What’s at stake goes beyond specific legislation. The fights that play out in the federal courts are also fights for ideological power. As Ramos reminds us, “We’re in a at least a generational-length contest for democratic possibility,” one that involves “contesting at the level of narrative – about what is this country, who gets to be here, who is government accountable to, in effect, who gets to govern.”

The right hasn’t cordoned off its vision for the Constitution and the courts from its broader vision, or from its efforts to populate the institutions that determine the shape of power in the U.S. Neither should we.



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