Whether the court regains its independence or cements itself as a third partisan branch of government is now largely up to Chief Justice John Roberts. If he does not act, and fast, to mitigate the court’s politicization, Democrats will be fully justified in expanding the court’s membership to restore balance — and indeed will face a public outcry if they don’t.
The Barrett spectacle could not have been uglier. It began with a superspreader event at the White House after which a dozen people, including President Trump, contracted covid-19. Trump insisted on naming a replacement even before Ruth Bader Ginsburg was in her grave, and he belittled the late justice’s granddaughter for conveying the women’s rights icon’s dying wish that Trump not replace her. (Mercifully, the White House shelved a plan to have Vice President Pence, whose staff is having a covid-19 outbreak, preside over Monday evening’s confirmation vote.)
Senate Republicans rammed through Barrett eight days before an election Trump seems likely to lose, and even though Trump has made clear he’s counting on the Supreme Court to overturn the result. They did this in an extraordinary public display of hypocrisy, four years after refusing to seat an Obama nominee to the high court because, they said then, that doing so more than eight months before an election was too soon. And they did this after abolishing the minority’s right to filibuster.
Barrett, in her confirmation hearing, made a mockery of the supposed “originalism” and “textualism” she professes to practice. She conspicuously refused to say whether a president could unilaterally postpone an election and whether voter intimidation is illegal — matters unarguable under the clear words of the Constitution and statutes.
In the long, desultory debate before Barrett’s inevitable Senate confirmation Monday, few even pretended they were engaged in some historic or noble tradition. The debate sounded more like a medical conference as Democrats warned about the many conditions that might not be covered if Barrett strikes down the Affordable Care Act after it comes before the court in two weeks.
Sen. Patty Murray (D-Wash.) spoke about “sleep apnea, asthma, pre-diabetes, complex post-traumatic stress disorder and hypothyroidism.”
Sen. Ben Cardin (D-Md.) spoke of “cancer, diabetes, high blood pressure, behavioral health disorders, high cholesterol, asthma, chronic lung disease, heart disease.”
“Muscular dystrophy,” Sen. Richard Blumenthal (D-Conn.) contributed. “Endometriosis.”
“Cystic fibrosis,” added Sen. Jacky Rosen (D-Nev.).
Republican Sen. Bill Cassidy (La.) countered with a speech about breast-cancer awareness. “The primary risk factor for breast cancer is being a woman,” he informed the chamber. He encouraged women to examine themselves for “the change in the look or feel of a breast, or possible discharge from the nipple, the presence of a lump, swelling, discoloration.”
Breast health is important, but for the matter immediately at hand — the health of the Supreme Court — this Senate and this president have administered only toxins.
If the chief justice wishes to restore dignity to the Roberts Court, it’s clear enough what needs to be done:
He can lean heavily on Barrett to recuse herself from any case arising from the presidential election next week.
He can use his influence to make sure the court upholds the Affordable Care Act after it hears arguments next month — not a legalistic punt on technical matters of “severability” but a ruling that puts an end to the constant assaults on Obamacare.
He can persuade his conservative colleagues to join him in upholding the rights of LGBTQ Americans as established in the 2015 Obergefell case, by rejecting a challenge to it by Catholic Social Services that will be argued the morning after the election next week.
He can forge a majority to reject Trump’s latest tired attempt to use the Supreme Court to further delay handing over his financial records to New York prosecutors.
And he and his colleagues can agree to hear one of the many challenges to Roe v. Wade now making their way through lower courts — and vote to uphold Roe for now. That would be the surest sign that the Roberts Court is not going to turn (immediately at least) into the reactionary caricature that most expect.
If Roberts and his conservative allies on the court don’t do at least some of this in the next few months, they can count on being joined next year by a whole batch of new colleagues. Mr. Chief Justice, and may it please the court: Your move.
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