On Sept. 18, Justice Ruth Bader Ginsburg died. Less than 40 days later — eight days before the election — Amy Coney Barrett was sworn in as the 115th justice of the U.S. Supreme Court.
Barrett, 48, is the third justice appointed by President Donald Trump. Her appointment gives conservatives a 6-3 supermajority on the court, reshaping the ideological configuration of the Supreme Court for the coming decades.
Barrett’s appointment comes on the heels of a frantic drive by Trump and Senate Republicans to beat the clock on the election despite unanimous Democratic opposition. The proceedings, which saw Republican senators reverse their stance from four years ago on making Supreme Court appointments before an election, represent the latest escalation of the polarization of the Supreme Court.
“The Senate used to serve the function as a check of the qualifications of particular nominees,” said UC Berkeley law professor Bertrall Ross. “In this polarized context that we live in right now, where the president is the clear leader of the party and Congress tends to follow — at least under Trump — the preferences of the president, the appointment process is one in which the president exercises almost complete control.”
The breakneck speed with which Barrett was nominated and the prospect of generation-long conservative control of the Supreme Court have left many Democrats aggrieved and exploring far-reaching ways to maintain influence within a branch of government that makes decisions on important issues such as health care and abortion rights.
Amid the collective outrage and frustration of many Democrats, both left-wing activists and opinion columnists of more liberal mainstream media outlets, such as The New York Times, have begun calling for a blue White House and a blue Senate to expand the court with liberal judges and forcibly destroy a conservative majority.
“Basic human rights are on the line now,” said Elizabeth Grubb, president of Cal Berkeley Democrats. “Court packing is just a necessary answer to this situation.”
Ross considers this strategy to be poorly advised.
With a Democratic president and Senate, liberals could expand their influence on the court, but given the Republican Party’s strategic disregard for long-standing norms, Ross said it is shortsighted to think a Republican president and Senate won’t add judges of their own when back in power.
“Expect that if Democrats engage in this practice, Republicans, when they control the presidency, are likely to do so as well,” Ross said. “That makes the court essentially a partisan punching bag in which its legitimacy is consistently undermined by efforts to expand or pack the court.”
Other proposals put forward by Democrats include instituting an 18-year term limit on the tenure of justices, increasing the number of justices required to overturn a law and installing a second, nonpartisan court concerned solely with constitutional law.
All of these proposals, however, fall into the same trap as packing the court: They sound good to Democrats who are expecting to win the executive and legislative branches, but the moment Republicans regain power, they’ll flip them right back, according to Ross.
“At the end of the day, what we may be stuck with, at least until the next resignation or passing, is a very conservative court,” Ross said.
However, Ross also said it is important to understand that although Supreme Court justices are not up for reelection, they are also subject to political and public pressures. They are well aware that important political players are seriously considering reforms that would limit their autonomy and their jurisdiction. As such, Ross said big-name issues such as abortion rights and LGBTQ+ rights will not be taken up by the court, at least as long as Democrats are in the position to take away some of its powers.
Even if Republicans regain power, Ross estimates that we will likely not see the wholesale overturning of Roe v. Wade. Instead, the court will lie low, chipping away at existing provisions.
The Supreme Court has always been political: The idea of court packing itself comes to Democrats from the attempts by Franklin D. Roosevelt to get his New Deal agenda past a hostile court. However, in recent years, the escalation of partisan division and the breakdown of many long-standing norms have made many Americans view their court as an inherently political institution that has become far too partisan.
“I’ve certainly lost faith in it,” Grubb said. “It’s become very legislative, which is not at all how it was intended to be. I think it’s become more and more powerful, more powerful than it was designed to be.”
Contact David Villani at [email protected].