What Kamala Harris could — and should — say about the courts tonight

The federal judiciary is broken, and the country cannot afford another four years of Trump judicial appointees being added to the courts. Harris should say so.

Source: Harris campaign website

On Thursday night, Vice President Kamala Harris will be formally introduced to the nation as the new leader of the Democratic Party.

Her speech will come after three different presidents — Bill Clinton, Barack Obama, and Joe Biden — spoke on the first three nights of the party’s convention. After a fourth presidential nominee, Hillary Clinton, spoke. And after Harris’s quick-pick hit of a vice presidential nominee, Tim Walz, spoke.

They and so many other speakers set out the Democratic Party’s positive vision — and contrasted it with the Republicans’ MAGA Trumpian vision.

Harris’s job is now to pull it all together and lead the party and the nation into the next 75 days.

She would do well to spend a good part of that time laying out to Democrats, undecided voters, and America a reality that she knows extremely well: The federal judiciary is broken, and the country cannot afford another four years of Trump judicial appointees being added to the courts.

She absolutely must talk about the U.S. Supreme Court, and how she knew what a disaster this 6-3 majority that she fought heartily against would be. The decision overturning Roe v. Wade is central to that, but she should pair that with a list of decisions — ending affirming action, restricting voting rights, limiting LGBTQ protections, striking down gun restrictions and student loan forgiveness — that show the breadth of the extremism of the court’s conservative majority.

The Supreme Court is almost as much of an opponent Harris is facing — both in the Biden-Harris administration and for a Harris-Walz administration — as is Donald Trump. The Supreme Court has and continues to make Americans’ lives worse. Harris is as well-positioned as anyone in America to explain that — and to fight it. The court’s actions need not be exaggerated to make a forceful case for her election — and, at the least, for a Democratic Senate to work with her.

She should go further.

Harris should bring talk of Supreme Court reform to the convention floor. The reforms endorsed by Biden — which she has backed — are a start, but Harris needs to make clear the America needs a government — and, specifically, judicial branch — that allows the president to lead under rules that apply the same to presidents of both parties. She should praise the aggressive reporting that has called out the ethical concerns at the court — and highlight the need for all government officials, regardless of role, to adhere to enforceable ethical rules. In addition to being the right position, this is also an argument for why Democrats also must win the House.

It’s not just the Supreme Court, either, and Harris knows that well. Trump appointees to the appeals courts, and the other extreme judges that their addition to those intermediate courts have empowered, have shown an inability to judge fairly and impartially. The U.S. Court of Appeals for the Fifth Circuit is often lawless — issuing decisions that plainly ignore Supreme Court precedent. The Fifth Circuit is not alone in that regard.

Even district court judges, regularly seen as the least politicized of federal judicial appointees, have taken on a different role in this era — with a handful of Trump appointees and aligned earlier-appointed extremists issuing outlier opinions that then create conflicts with other courts, forcing the Supreme Court’s hand (or, as I’ve often discussed, giving the court’s conservatives the opportunity to feign being “forced” to take on an issue that the conservatives want the court to take on).

Harris could explain this complicated path — and the dramatic effects it has on Americans’ lives — easily by reminding everyone of the effort to ban the medication abortion drug mifepristone.

First, she could remind people of U.S. District Judge Matthew Kacsmaryk’s effort from his courthouse in Amarillo, Texas, to ban the drug nationwide in a lawsuit manufactured by anti-abortion activists to come specifically before him. And though The Fifth Circuit would not have banned the drug outright, she could continue, it would have prevented it from being mailed and would have put back in place additional restrictions that the U.S. Food and Drug Administration had long concluded were unnecessary to ensure the safe use of the drug. This would have had a dramatic effect on the availability of abortion post-Roe. The Supreme Court, she could then say, eventually tossed out the case — holding that the plaintiffs in the manufactured lawsuit lacked standing, a legal right to be in court — but doing so left several questions unresolved, including whether an 1873 law creates a criminal ban on mailing mifepristone.

Looking to the election, Harris could conclude, the question of whether the next administration tries to enforce that law, the Comstock Act, as Project 2025 recommends — and whether the Supreme Court would be in the position to allow that national criminalization of abortion — is at the ballot box.

Is 2022’s Dobbs v. Jackson Women’s Health Organization the beginning of further and ever more extreme restrictions on people’s autonomy, or was it the turning point — the act that precipitated what will some day soon be the end of the Supreme Court’s extremism?

Harris could pose that question, tell us that she will fight to ensure that it becomes the historical turning point, and let us know that the power to help her do so — and fix the courts’ relationship with the other branches and with Americans — is in our hands.

And, to perfectly tie it all together, she could remind us that many states will also be voting to protect abortion rights in response to that Supreme Court extremism on the very same ballot where her and Walz’s names will appear.