The muted nature of the event belied its significance. Amy Coney Barrett was sworn in as a justice of the US Supreme Court on Monday night, after a quick and uneventful passage through her Senate hearings. Only one Republican voted against the woman who now establishes a conservative supermajority on the bench.
The implications are sweeping in their extent, and lasting in their duration. The high court now has more potential to trim reproductive rights and the government’s regulatory powers, among other features of the liberal settlement. Having installed three of the six conservative judges, as well as many more in the lower courts, Donald Trump can lose next week’s election and still go down as a more consequential US president than many two-termers. Such is the outsized role of the judiciary in a nation where the legislature is dysfunctional and unpopular.
Vigilant to the adverse changes that might be afoot, some Democrats want to stuff the Supreme Court with more judges, to tilt its ideological balance in their favour. Others suggest less incendiary reforms, such as giving each president a set number of appointees or limiting the kinds of cases that go before the court. Joe Biden, Mr Trump’s Democratic challenger, has been ominously vague on the subject.
If it finds itself in control of the White House and Congress, the party would be within its rights to change things. The constitution provides for a Supreme Court, but says little about its remit and even less about its size. America is vastly more populous than it was when it settled on a nine-judge bench in the 19th century.
The trouble is that no serious change would go unanswered. Republicans would cry foul, and press for their own institutional tweaks as soon as they next attain power. The scope is there for a back-and-forth that demeans the Supreme Court over time.
And yet a conservative revolution from the bench would be no less provocative. Most Americans want to retain Roe vs Wade, the landmark abortion ruling, as well as the state’s role in the protection of workers and the environment from raw market forces.
The neatest way around this quandary is a measure of restraint by the new court. If it were to bring about a sharp rightward turn in national life — by striking down Obamacare, for example — Republicans would celebrate the fruition of a decades-long project to capture the court. But the institution itself would wane, both by alienating the public (or at least a large share of it) and by provoking fundamental revision to its shape and scope. The court may not be elected, but it does count on its perceived legitimacy.
Some conservative judges, including Chief Justice John Roberts, seem to understand this, and avoid dramatic breaks with established law on sensitive questions. The court is much more “political” than its official mission admits: its rulings often coincide with the broad mainstream of public opinion. And that is why it is still here.
If the court is prudent, it will be hard for the Democrats to be anything but. Mr Biden is a creature of institutions, not a radical. If he does not rule out packing the court, it is because he wants to keep the left on his side until at least the election. If elected, he will not want to spend political capital on a war over the Supreme Court; there is fiscal relief for the recession to legislate, among other priorities. Nor should the Supreme Court relish one. It can avoid a clash, or at least delay it, by erring on the side of caution in the coming years. Ms Barrett can serve her institution by disappointing her nominators.
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October 28, 2020 at 01:00AM
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