The Supreme Court under the Right’s Control

We already know who President Donald Trump will nominate to the Supreme Court to fill the vacancy left by Ruth Bader Ginsburg who died last week. He will nominate the ultraconservative federal appellate judge Amy Coney Barrett. The president announced his decision on Saturday shortly before midnight Polish time. If the 49-year-old Barrett is confirmed, conservative justices will hold a 6-3 majority, and this will ensure rulings in a conservative spirit for a long time to come, maybe for an entire generation. This will be the most conservative Supreme Court in almost 100 years, and it may result in the escalation of already dramatic political conflict in the United States.

Barrett in the Supreme Court

Barrett is a Catholic, a former law professor at Notre Dame University and mother of seven. After completing her legal studies, she clerked with Antonin Scalia, the noted Supreme Court justice and favorite of the religious right who died in 2016. In her writing, Barrett has stressed that life starts at conception and has criticized major precedent in the field, suggesting she will vote to overturn the historic 1973 Roe v. Wade opinion which protected a woman’s right to abortion.

She is expected to take the position of the right on such issues as the environment, access to guns and health care. The fate of Barack Obama’s health care reform, enacted during his presidency and which Republicans want to repeal, is at stake. Trump and the Republican Party have selected an extreme nominee who is strongly supported by evangelical Christians because they want to avoid the unfavorable reaction that faced previous nominees named by Republican presidents. Former Justice Anthony Kennedy and current Chief Justice John Roberts turned out to be more moderate than expected, and in some cases, the two men voted with the liberal members of the court. Barrett’s main rival, Barbara Lagoa, despite being a Latina woman from the swing state of Florida, was not nominated because conservatives did not fully trust her.

On Oct. 12, the Senate Judiciary Committee will begin confirmation hearings on Barrett’s nomination. Her confirmation is practically a foregone conclusion since Republicans hold a majority on the committee as they do in the Senate, and certainly no one is expected to break rank. Democrats can only hope to find an unexpected skeleton in Barrett’s closet, but one cannot count on something like that as Supreme Court nominees undergo thorough background checks. Barrett has a good reputation, and a personal attack could backfire. It is expected that during the hearings she will be asked the usual questions about her position on abortion, but this time, there will be emphasis on her views about the Affordable Care Act. The health care reform is popular because if provided health insurance coverage to millions of Americans. Democrats will emphasize that as a reminder that Trump wants to take affordable health care away from voters, and that he wants to do it with the help of the Supreme Court since this is where the lawsuits challenging various aspects of Obama’s health care law will end up.

Who Will Decide the Election Result?

The most important focus of the hearings will certainly be the presidential election scheduled shortly after the confirmation hearing. Trump has recently hinted he may not acknowledge the result if he loses, claiming that mail-in ballots may be rigged, and that 37% of Americans who opt for mail-in voting support Democrats. Under this pretext, the president and his Republican allies will probably try to halt the counting of mailed-in ballots, which takes longer, or they may tamper with the Electoral College. Since the courts may have the final say, a decision about the election may end up in the Supreme Court.

What’s Barrett take on this? Does she think the Supreme Court, the democratic institution established to be independent of politics and politicians, should get involved in the ruling on this year’s election results? It will be interesting to see how Trump’s nominee answers this question.

If the conservative majority in the Supreme Court supports the president, they will ensure his reelection. But the Supreme Court will lose respect in the eyes of Americans, as it did in 2000, when it settled a vote-counting dispute in Florida that was decisive in George W. Bush’s victory over Al Gore. Opinion polls suggest that confidence in the Supreme Court has declined over the last 20 to 30 years. Republicans may also lose out by nominating an ultraconservative justice. They might be able to block progressive change, but they run the risk that a threat to liberal achievements like legal abortion may additionally mobilize Democratic voters to the extent that the Democratic Party will regain the Senate. According to opinion polls, this is very probable in districts where Republican senators are running for reelection.

Supreme Court To Clash with Americans

This nomination is important for the Supreme Court since the Democrats, who dominate the House, are not likely to lose its majority there, and under pressure from the left-wing of its party, will try to radically reform the judicial system. They have already introduced a draft bill imposing term limits on Supreme Court justices who hold lifetime appointments. There is also a proposal to expand the number of justices from nine to 13. The chances for the second idea are slim. Former President Franklin Roosevelt tried and failed to pack the court. Term limits may be passed with a majority vote, although this seems unlikely at the moment. Here is where a filibuster, an institutional mechanism that requires a two-thirds majority to pass a bill, would stand in the way.

Lifetime appointments were once introduced in the Supreme Court to ensure its independence, but this happened when the average life expectancy was 40 to 45 years. Today, that number has almost doubled, and since there are no term limits, the Supreme Court’s right-wing tendency will be likely to last for half a century. That will mean an inevitable clash with the progressive evolution of American society which is, among others, driven by demographics.