ACLU director on how the conservative Supreme Court has made three liberal rulings

“You can still win over some conservatives,” says Anthony Romero, executive director of the American Civil Liberties Union. In a discussion with FastCompany.com deputy editor Kate Davis on Tuesday morning, the 19-year veteran of the ACLU reflected on the Supreme Court decisions of the past few weeks, which affirmed Constitutional protections for Dreamers, the LGBTQ community, and women’s rights to abortions.

While the wins were a surprise to liberal pundits and activists alike (due to the court’s majority-conservative makeup) Romero said the approach was strategic: “We can use conservative arguments and force the Supreme Court to end up with liberal outcomes,” Romero says. “If you look at the text of the Title VII [anti-discrimination] cases, the argument is written for Gorsuch and Roberts.”

The conversation, which took place as part of Fast Company’s annual Impact Council meeting, touched on free speech, Facebook, voter suppression, Confederate monuments, and the role of businesses in dismantling systemic racism. While acknowledging that the past three years under the Trump administration have been extremely trying, Romero noted that there is still reason to be hopeful. The recent Supreme Court decisions bring new confidence that the court is “willing to play an independent role,” outside of party line pressures present in Congress and the White House.

The ACLU has been busier than ever under the Trump Administration, increasing its staff by 50% and filing more than 50 lawsuits against the administration in Trump’s first year of office alone. In the breakneck news cycle of 2020, Romero views the ACLU’s work as a “four-front war”:

1. Tackling the fallout of COVID-19 (including treatment of incarcerated people, designation of abortion clinics as “essential businesses,” and efforts to expand voting by mail)
2. The resulting recession and rights of workers
3. The Black Lives Matter movement and holding law enforcement accountable for its systemic oppression of Black Americans
4. The Trump administration, particularly the damage that can be done “by an administration that feels it’s losing its constituents.”

Amidst these pressing and constantly changing issues, Romero says the ACLU’s strategy will be to lean into small victories, while still advocating systemic overhauls. “I believe that the push to defund police is the right one,” Romero said.

“At the same time, I never let the goal get in the way of incremental change.” In the fight for marriage equality, Romero explains, the organization first won civil unions, then domestic partner benefits, then repealed the Defense of Marriage Act, which all paved the way for Obergefell v. Hodges to grant same-sex couples full equal rights. The same, he believes, will happen on police reform and prison abolition. “I think there’s a growing consensus among conservatives that this doctrine of ‘qualified immunity’ needs to be retired. Even Clarence Thomas and some members of the Conservative Bar believe qualified immunity is a problem, so let’s take what we can along the way.”

As the ACLU attempts to sway the opinions of conservative judges and legal minds, it also is courting Republicans in the area of voting rights. The organization has invested more money into curbing voter suppression, and so far filed 11 lawsuits forcing states to enact vote-by-mail, usually in more conservative states that “think it’s a way to elect Democrats and hurt the prospects of Republicans.” Romero categorically disagrees: “I think there are a lot of really smart, older Republicans who know that there is a pandemic, who are not going to risk their health or their life to stand on a voting line.”

The policy, he says, levels the playing field across the board, even for the president who so vehemently opposes it. “It might be the only way Donald Trump wins Florida,” Romero mused, noting the state’s large cohort of elderly Republicans. By showing that forcing in-person voting will result in a smaller turnout, with longer waits and unsafe conditions, and therefore “undue burden,” the organization has already won a case in Tennessee. As Romero pointed out, the organization has its work cut out for itself before November.