Original illustration by Ji Sub Jeong/HuffPost; photo via Getty Images

Progressives have found themselves locked out of the Supreme Court for the foreseeable future. So some are turning to a new strategy to keep the court from damaging their policy priorities: presenting arguments to its conservative justices in a language they understand. For this court, that means making textualist arguments ― grounding a legal case in the original text of the Constitution and any relevant statutes ― to peel at least one vote from its five-vote conservative bloc. One progressive group happens to be uniquely prepared for this moment. The Constitutional Accountability Center, founded in 2008 by litigator Doug Kendall, is the central hub for advancing progressive textualist arguments in the courts and to the public. Kendall, who died in 2015, argued that the debate over how judges should interpret the law was over: Textualism, which had largely been embraced by conservatives like the late Justice Antonin Scalia, had won. It was time for progressives to join the fight over the meaning and interpretation of the Constitution, Kendall said. “Our founding belief was that if progressives spent less time fighting about the method of interpreting the Constitution with conservatives, we could spend more time discussing what the Constitution actually means,” said Brianne Gorod, chief counsel for CAC. “And that that’s a fight that progressives can win.” The textual arguments the center has been making for a decade are now more important than ever. Justice Anthony Kennedy’s departure from the court in 2018 left behind a conservative court majority that takes after Scalia far more than Kennedy. SUBSCRIBE AND FOLLOW POLITICS Get the top stories emailed every day. Newsletters may offer personalized content or advertisements. Privacy Policy Newsletter Please enter a valid email address Thank you for signing up! You should receive an email to confirm your subscription shortly. There was a problem processing your signup; please try again later Twitter

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Bloomberg via Getty Images The new Supreme Court is further to the right than any court in the decades.

“With the different court, mostly populated by people who have fashioned themselves as originalists, you know, we need to speak to them in the language that they have at least themselves,” Gorod said. The center’s lawyers are representing nearly 200 members of Congress suing President Donald Trump for violating the Constitution’s emoluments clause. They argued against the appointment of acting Attorney General Matthew Whitaker. And they have made textual arguments through amicus briefs in dozens of cases that have been decided, argued or are still working their way through the courts, including on vital issues like the structure of the Consumer Financial Protection Bureau and the federal housing agencies. The Supreme Court may have kept Whitaker in his position when it ruled on a separate challenge to his appointment, but other textual arguments CAC has made have succeeded in reaching progressive results. In the case of New Prime v. Oliveira, the court issued a unanimous 8-0 decision written by Justice Neil Gorsuch that sided with Dominic Oliveira, a trucker, against New Prime, his employer, which sought to use forced arbitration to get him to pay for his own gas and leasing his truck. This was a remarkable win for workers, as the conservative bloc on the court has sided with the corporations in practically every recent case involving forced arbitration. How did this conservative court come to this rare conclusion in support of an independent contractor? It’s because CAC and Public Justice, the group representing Oliveira, made detailed textual arguments to the court ― and won. The costs that led to the forced arbitration in the case arose because New Prime classified Oliveira as an independent contractor during his apprenticeship period. This let New Prime deduct costs from his paycheck. Oliveira challenged whether New Prime could classify him as an independent contractor at all; if not, the company could not force him into an unfair arbitration process. Public Justice and CAC argued in briefs and to the court that the Federal Arbitration Act of 1925, as it was originally written and understood, would not allow New Prime to classify Oliveira as an independent contractor. To make this argument they dug deep into dictionaries from the Middle Ages up to the 1920s to show that lawmakers who wrote and passed the FAA in 1925 saw the word “employment” as a synonym for “work.” Therefore if Oliveira was working for New Prime in any capacity, he should technically be treated as an employee for the purposes of the arbitration law. In his decision, Gorsuch cited the dictionaries Public Justice and CAC presented as evidence to side with Oliveira and deliver a progressive victory for workers.

ASSOCIATED PRESS Justice Neil Gorsuch is the main target of progressive textualist arguments.