Packing the Court
The appointment of judge Amy Coney Barrett to the Supreme Court of the United States represents a stunning coda to Donald Trump’s four years of shredding American political norms and institutions. Barrett’s lack of experience and extremist views, coupled with the extraordinary timing of her confirmation, make this the most controversial Supreme Court appointment in American history.
Senate Majority Leader Mitch McConnell wasted no time in discarding the dying wish of Ruth Bader Ginsburg, that her replacement not be appointed until after the election. When a court vacancy arose under Barack Obama, McConnell kept the position open for 237 days, gambling that a Republican would win in 2016. Yet when a similar situation arose on the death of Justice Ginsburg, the high-minded justifications for not proceeding during an election year were quickly and hypocritically abandoned.
Barrett’s CV is almost comically absent the kind of experience normally expected of a Supreme Court judge. Barrett only became a judge in 2017 and has never tried a case or argued an appeal. During her confirmation hearing it became apparent she has little knowledge of the foundational freedoms enshrined in the first amendment. In fact, Barrett has virtually no law practice experience at all – her spectacular climb from second-tier law professor to Supreme Court nominee appears more related to the political groups she has worked with than suitability to the job.
Adding to the controversy is Barrett’s hard-right views on everything from abortion to healthcare and sexuality. Prior to being appointed a judge, Barrett served on the board of three private Christian schools, whose policies effectively barred admission to children of same-sex parents and refused teaching employment to non-heterosexuals. Barrett has spent a lifetime viscerally opposing abortion, and joins the court at a pivotal moment for Roe v Wade.
We may find out Barrett’s approach to jurisprudence in short order. America’s new justice starts work immediately, with just days to go before the election. The court’s schedule is already packed with cases litigating state voting counts and procedures that may have a direct bearing on the outcome. Should the election not produce a clear cut winner the matter is likely to end up back at the Supreme Court’s door, as it did in 2000 when George W. Bush gained power – a case on which Barrett worked.
Judge Barrett has made no commitment to recusing herself from passing judgement, in a case where one party would be the man who put her on the court just a week before. With a third of the court’s jurists appointed by the sitting president, America could face an unprecedented constitutional crisis.
And there’s much more to follow. Election day precedes a court schedule that could fundamentally reshape America just a few months. In early November, the court is due to hear arguments on a challenge to the Affordable Health Act (‘Obamacare’), potentially throwing tens of millions of Americans off their health insurance during a once in a century pandemic. Judge Barrett has criticised previous rulings upholding the legislation. The day after the election, the court will hear arguments in a case that could set back LGBTQ rights. This Friday the court makes a decision on whether to hear a case that is designed to strike down Roe v Wade. There is a very real possibility that abortion may soon become illegal in the United States.
Republicans no longer even attempt to suggest that their actions represent a democratic reflection of the people’s wishes. Five of the nine sitting judges were appointed by presidents who came to office having lost the popular electoral vote. The judges appointed by President Trump are 53, 55 and 48 respectively. As lifetime appointments, they could influence the direction of America for the next forty years.
Should Joe Biden win next week, he has little alternative but to expand the size of the court. This is something that has been done previously, with the number of justices ranging from five to ten over history. By any measure, Mitch McConnell and Donald Trump have abused the rules in order to stack the Supreme Court. Biden could use control of the Senate to appoint perhaps four more justices, to balance the court and restore order.
But that is assuming that Biden wins. The appointment of Amy Coney Barrett to the Supreme Court may offer Donald Trump a path to stealing the election and gaining a second term. And then all bets are off.
It’s become commonplace to frame every American election as the most important in history. This one is. It’s an existential event for the United States of America, and the highest court in the land, which is more ideologically unbalanced than ever, may have the final say.
Senate Minority Leader Chuck Schumer’s words yesterday bear remembering.
‘The American people will never forget this blatant act of bad faith. They will never forget the lack of consistency, honour, decency, fairness and principle. They will never forget the rights that are limited, constrained or taken away by a far right majority on the Supreme Court. And history will record that by brute political force…this Republican majority confirmed a lifetime appointment on the eve of an election, a justice who will alter the lives and freedoms of the American people while they stood in line to vote. Monday, October 26th 2020 will go down as one of the darkest days in the 231 year history of the United States Senate’.