Last June the Supreme Court’s conservative majority dealt major setbacks to abortion rights, gun control laws, and climate change proposals. This June the damage was to LGBTQ+ rights, affirmative action programs, and student debt relief. On deck are cases that could further restrict a president’s ability to manage federal agencies and loosen gun regulations.
Brian Fallon is troubled by the impact of all the recent rulings, but he isn’t letting that distract him from trying to put in place the political foundation for a seismic change: expanding the number of justices on the Supreme Court and making it more answerable to majority opinion instead of right-wing ideologues. Five years ago, Fallon, who has previously held senior jobs with Senator Chuck Schumer, Attorney General Eric Holder, and 2016 presidential nominee Hillary Clinton, launched the advocacy group Demand Justice. He readily criticizes his own party nearly as strongly as he goes after Republicans, lamenting to me last year that Democrats “always bring a butter knife to a gunfight,” when it comes to the courts.
His frustrations remain. “There are elite lawyers on the left who will point to things and suggest, ‘You know, we can still do business with this Court,’” he says in an interview after the Supreme Court’s final decisions for this year came out. “That’s foolish, and it’s delaying grappling with what actually needs to be done.” Fallon spoke with Vanity Fair about whether he thinks President Joe Biden will make the Supreme Court a central issue in his 2024 reelection campaign, and why waiting for ethically compromised justices to leave voluntarily is a losing game. This interview has been lightly edited for length and clarity.
Vanity Fair: I can’t imagine you were surprised by these rulings. But did you see anything significant about the way in which the majority arrived at them?
Brian Fallon: The reporting, in the last 48 hours before the end of the term, about the falsified standing on the LGBTQ discrimination case was not shocking, but I think it was notable. It goes to show that they are working backwards from the decisions that they want to reach. You saw this in the school prayer case last term too. The court gets to choose the cases it wants to hear, and then, even when the facts suggest that maybe they should moot the case or the plaintiff doesn’t have standing, they’ll still go forward. It’s because they’re in the business of advancing the conservative movement on several big targets that the Federalist Society and the right-wing legal movement have had in their sights for many decades now: school prayer, rolling back LGBTQ equality, rolling back abortion rights, affirmative action.
So the Court’s earlier, somewhat more progressive-friendly rulings, particularly on election law, were head fakes?
People like to point to aberrations like, “Oh, Gorsuch, he’s really good on tribal rights.” Okay. And the Court did not uphold the independent state legislature theory. It was crazy the case even got that far and that a couple of justices would have been willing to entertain it! When push comes to shove on the key issues that matter most to the conservative legal movement, these guys will do whatever it takes, even look past factual inaccuracies or misrepresentations to the Court made by plaintiffs that are astroturfing an entire case.
Your group, Demand Justice, was a forceful advocate for the nomination of Ketanji Brown Jackson. What did you think of her dissents in the major cases?
Her dissent in the affirmative action case was great. I love how she was happy to mix it up with Clarence Thomas directly. That’s going to be good for us. If we have to be on the losing end of 6-3 cases, it’s good to have somebody like her that is able to write the dissents in such plainspoken English that people can understand. There were probably more legally majestic ways to make the point she was making. But “let them eat cake obliviousness,” that was an instant soundbite everybody latched on to. It breaks through the noise and it’s very effective. There’s a sense underneath her writing that she’s declaring, “This is all bullshit.” That’s refreshing.
Chris Smith
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