How the Supreme Court Might Change, and How We Can Fix It
This week, we talk with Adam Cohen about the conservative tilt of the Supreme Court and the harm it has caused Americans. It’s a fascinating conversation, but we’re focusing on a different angle in today’s blog: the passing of Ruth Bader Ginsburg. She was a bulwark of liberal ideals, and her passing marks an immeasurable loss for the highest court in the land, and for the hundreds of millions of Americans whose rights now hang in the balance.
Supreme Inequality: Adam Cohen
Mitch McConnell, operating at his most cynical, hypocritical, and predictable, announced the Senate would vote on a replacement before the November election. His move annihilates the precedent he himself set just four years ago when he refused to hold a vote on Merrick Garland, stymieing Obama’s election-year pick. McConnell’s flagrant destruction of Senate norms now includes his own, and the Republican Party’s power consolidation at the cost of a functioning democracy has shifted into high gear.
The Supreme Court is already majority conservative, but if Ginsburg’s vacancy is filled with a conservative justice, that divide can become a 6-3 GOP controlled entity. Although we don’t know for sure who Trump’s replacement pick will be, Amy Corey Barrett currently seems to be a favorite, with Trump once saying he was “saving RBG’s spot” for her.
If so, America is in trouble. Barrett identifies closely with the ideologies of former conservative Supreme Court judge Antonin Scalia, and is an outspoken opponent to reproductive rights.
A 6-3 SCOTUS featuring a justice like Barrett would likely spell the end of several landmark decisions and legislations critical to American well-being. First, the Court would likely return many legislative decisions to states, effectively meaning the end of the federal right to abortion as stipulated in Roe. v Wade.
A robust conservative majority also means the SCOTUS would look at more controversial cases with the confidence of a conservative ruling. Currently, conservative justices are wary of reviewing some critical issues, worried their slim majority might not hold. A sixth conservative justice might deliver wins for more 2nd Amendment rights, gutting whatever gun control currently exists, the curbing of LGBTQIA rights, expanded religious rights, and more.
A 6-3 court might destroy the Voting Rights Act, which it already undermined in 2013. This would also mean a continuation of Republican minority rule in many parts of the country as Democratic voters face increasing disenfranchisement; all brought about by a conservative Court bent on keeping Republicans in power.
A new Court could also very well spell the demise of the Affordable Care Act, forcing tens-of-millions of Americans out of critical healthcare during a pandemic. In America’s cruelly absurd reality, this represents an unfathomable loss. The Supreme Court is scheduled to hear two consolidates ACA cases on November 10, just one week after Election Day.
Campaign finance laws, already severely weakened by the Court over the last few decades, could cease to exist entirely. Unlimited, anonymous money could become an even more integral part of our electoral process, continuing elite power and influence in American politics for generations to come.
Finally, if McConnell and his fellow Republican senators manage to shove a new Justice on to the Court before November 3, they may be sticking us with Trump regardless of the election’s real outcome.
“In decision after decision in election law, it’s amazing how many are five-to-four rulings in which the conservatives take the position that helps Republicans to literally win elections and stay in office,” Adam told Mila in our interview. “This court is literally helping Republicans to take office.”
If the race is close, as in 2000, the final decision may head to the Supreme Court. Twenty years ago, the Court handed a victory to conservative George Bush, even though Al Gore had the votes to win in a recount. A similar saga could play out this year, with SCOTUS naming a (probably conservative) victor before a recount—or even a full count—can take place. Trump is already banking on this strategy.
The GOP has demonstrated their unwavering commitment to winning at the expense of all else, and an even more lopsided conservative court will undoubtedly continue this disgraceful tradition.
Ginsburg’s death represents an imminent, catastrophic shift in power in the US, at the worst possible time. Nonetheless, not all is lost. First, democratic strategists see the upcoming confirmation fight as an excellent mobilizer for voters. If Biden can win convincingly in enough states, Trump will likely be unable to contest the results in court. Voting for Biden is now the most important thing you can do for the well-being of your fellow Americans, for America, and the world. That sounds like hyperbole, but it sincerely isn’t.
Aside from voting, we must focus on the Senate, where senators vote on whether a Supreme Court justice nominee is confirmed. A democratic win in Arizona—where a special election is currently underway—would slim the Republican majority to 52 in November, still enough to confirm, but not enough to do so comfortably. Putting intense pressure on lawmakers may delay the vote until after the Inauguration Day, and needs to be a progressive strategy in the next month. Contact your senators early and often—no matter their political affiliation.
What happens if Republicans succeed in a SCOTUS pick, but lose the presidency and Senate? Since the GOP destroys or abandons Senate rules whenever it suits their fancy, Democrats need to find their own ways to amass and exercise power. One solution currently making the rounds is the expansion of the Supreme Court.
The Supreme Court was initially a six-seat bench, and their numbers fluctuated until Congress stipulated a nine-seat court in 1869. With a Democratic Congress and President, they could readily stipulate a different number. Some see this as a dangerous disregard of precedent, but it’s clear the Republicans aren’t playing fair, and we need a solution. Many on the left agree McConnell stole the SCOTUS in 2016 and adding a few new judges “un-steals” it. Proposals for a 15 or 19-seat court are circulating and represent the best solution for a better, more progressive court.
Expanding the Supreme Court would likely be a divisive, messy affair. In the face of the right’s increasingly transparent dances with fascism, racism, and propagation of a neofeudalistic wealth-divide, it’s our best—and perhaps only—real way to create a better future.
I am really nonplussed by the extent liberals are going to try to come up with some solution OTHER THAN court expansion.
I don't think people understand that court expansion is LITERALLY THE EASIEST thing to do, ACCORDING TO THE CONSTITUTION.
— Elie Mystal (@ElieNYC) September 22, 2020
We still do have time to keep the pressure on the Senate to delay the nomination and confirmation, and – barring that – even to reshape the courts in a new administration. The next few months have the chance to be among the grimmest days of our lives, but that future isn’t sure yet. We have the ideas, resources, and willpower to fight for a justice who defends the rights of all Americans.
Now that you’ve read this, go call your Senator like your life depends on it. It might.
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