The Conservative Conspiracy Theory About A Supreme Court Coup
Source: Supremecoup.com
If you have been on YouTube recently, you might have noticed a very peculiar ad. “Political elites from the radical left want to overthrow the Supreme Court,” an imposing voice booms. “The cost would not only be our founding principles but our civil liberties as we know them.” The ad claims that a Supreme Court “coup” is underway and that Americans must be vigilant to stop radical leftists from overtaking the country.
This hysteria is very clearly not true on multiple levels that we will go into in more detail later on. The left is nowhere near capturing any federal branch of government, let alone one as recalcitrant as the Supreme Court. These ads are not about a real threat to America, but rather signal a concerted effort from one overly litigious nonprofit to fire up the conservative base so that it can rake in plenty of dollars in donations.
Right off the back, I want to clarify several points about this alleged “Supreme Court coup.”
Firstly, adding more seats to the Supreme Court via legislation isn’t a coup. A coup is when power is seized or displaced from the existing executive authority. This means a transition of power that is either illegal or “extra-legal” (i.e., goes beyond extraordinary measures included in the country’s constitution or body of laws, such as declaring a permanent state of emergency). The Cline Center for Democracy has defined 12 different categories of coups ranging from the military seizing power (i.e., a military coup) to the existing executive taking extreme measures to eliminate the power of their opposition (i.e., an autocoup), and none of these categories fit this current situation very well.
You would have to have a pretty ignorant reading of the law to assume that Congress changing the court's composition constitutes a coup. The number of seats in the Supreme Court is dictated by Congress, arguably as a constitutional check on the judiciary from the legislature. It would not only be constitutional to change the number of justices, but it historically has happened before. Congress established the Supreme Court in the Judiciary Act of 1789, originally with six justices. Since then, the number of seats has shifted six times, settling on nine justices, 80 years later in 1869.
Changes to the Court’s composition may not have happened in over 150 years, but something being irregular is not the same as something being illegal or even unconstitutional. No one is proposing that the Democratic Party remove the existing justices by force or bar Republican justices from serving on the Court. They are proposing the political majority in Congress, elected by the people of the United States, vote on a law to amend something that they are constitutionally permitted to do.
Secondly, this entire conversation is academic because Congress is nowhere near adding seats to the Supreme Court. Thanks to conservative Democrats such as Senators Joe Manchin and Kyrsten Sinema, the Democrat majority can barely pass an increase to the minimum wage, let alone distorting the laws of the land to prevent Republicans from holding power. The image presented in this ad is hyperbolic, at best, and far better describes the Republican Party’s efforts to suppress voter turnout.
So what’s brought on this Supreme Court panic showing up in your YouTube feed?
The Biden Administration has created a 36 member commission to study the debate around reforming the Supreme Court. They publicly met for the first time in May of 2021 and are expected to release a report sometime in August. These findings will not be binding in any way. Sadly, there has been a long history of presidents convening commissions to study issues they have no intention of fighting for politically. There is a remote chance this study might incite more serious political reform, but given the composition of the Senate, it’s more than likely to lead nowhere.
Conservatives are playing into the mostly unfounded fear that this commission will be used as a pretext to expand the number of seats in the Supreme Court via legislation (sometimes pejoratively referred to as “court-packing”). Again, this decision is legal and will probably not happen because of the previously aforementioned conservative Democratic Senators Joe Manchin and Kyrsten Sinema. However, something being unrealistic hasn’t stopped conservatives from making a big deal out of it (see, as an example, the debate on Critical Race Theory).
Specifically, these ads come from the First Liberty Institute, a conservative legal nonprofit founded by lawyer Kelly Shackelford. This organization is infamous for fighting for “religious liberty” cases, a term that sadly often translates to people trying to impose their religion in secular spaces or using religion to discriminate against marginalized people. Examples of the organizations' caseload include representing a high school football coach, who was dismissed after he refused to stop praying at the 50-yard line after games, and Melissa and Aaron Klein, owners of an Oregon cake shop that in 2013 refused to do a cake tasting for a same-sex couple. All of these cases are highly sensationalized, tending to attract the attention of conservative media.
Source: First Liberty site
We do not know who funds First Liberty because they do not disclose their funders, but according to their 2019 filing from ProPublica, they get most of their revenue from individual donations and grants — a large portion of which seemed to come from funds likes the Schwab Charitable Fund, the National Christian Charitable Foundation, and the Fidelity Investments Charitable Gift Fund. These funds facilitate these donations, but it's the donors themselves who are making the individual decision to donate to First Liberty. This fact implies that First Liberty might actually rely on individual supporters for a chunk of their revenue.
This need to reach out to small-time funders ties directly into their content media strategy. The content they put out is all about creating meaningless conflicts in the culture wars. First Liberty releases hyperbolic, fearmongering videos and ads regularly so that they can drum up support (and money) from triggered conservatives.
In one recent video titled Marxism in the Military?, they interview a former Lt. Col. Allen West, who discusses “the creeping ideologies that are infecting our U.S. Military.” The video does not provide viewers with a serious way to combat this alleged “Marxism,” but an option to donate to First Liberty does periodically pop up onto the screen. “Donate: Text First to 474747,” the video asks as the two men drone on about an activity they are allegedly very concerned about but also not concerned enough to fight for a specific policy.
It’s all bluster and no substance. This “SupremeCoup” is not a legitimate political concern but an obvious fundraising tactic. The original “Supreme Coup” ad doesn’t give you tools to contact political leaders or fight for a specific law, but instead to the website supremecoup.com. The first thing that happens on the microsite is a popup asking you to take a heavily biased survey which, once completed, redirects you to a page that asks you for a one-time or recurring donation.
Source: Supremecoup.com
This isn’t a tactic unique to this organization. “Surveys” are a common fundraising tool used by both conservative and liberal organizations. However, it does speak to how this is a non-issue. If a coup were actually on the horizon, the only organization talking about it would not be trying to raise money first and create political change second. This conspiracy theory is all about “astroturfing” outrage over a nonissue so that this one organization can continue funding its “religious freedom” vanity projects.
Conservatives in US politics love exaggerating issues so that they can paint themselves as victims. They control so much political power — both in terms of people in political office and agenda-setting — and yet they still perpetuate these outlandish conspiracy theories about Democrats conspiring to take power from them.
Democrats have no interest in overthrowing the Supreme Court or really usurping political power in the same way Republicans do (an article for another time). If Democrats were halfway competent, Conservatives would not have all this time on their hands to be inventing fake plots against them. They would be playing defense like the rest of us. It reflects their ingrained privilege and power that they can create such an outlandish narrative utterly divorced from our material reality.
It’s too early to tell if this narrative will catch on in the wider conservative media apparatus (First Liberty’s bank account certainly wants it too). It could very well be something that dies soon, replaced by some other absurd battle in the culture wars. Yet, given that the commission will not release their report for another month or so, we should expect some level of buildup over the next couple of weeks.
It may not be a real threat, but reality has nothing to do with conservative anxiety.