With a Chance to Realign the Supreme Court, Republicans Must Wait

While many of President Trump’s campaign priorities have gone unaddressed over the course of his first term, the Trump administration has remained committed to filling judicial vacancies, a move lauded by conservatives. With almost two hundred federal judges confirmed since 2016, nearly a quarter of all active judges have been appointed by President Trump and confirmed by the Republican-controlled Senate. An impressive achievement in itself, the crowning jewels for Republicans have been the confirmations of Justices Neil Gorsuch and Brett Kavanaugh to the Supreme Court. Republicans now have the opportunity to complete the trifecta and select their third judge to the highest court in the land after less than four years. The passing of Ruth Bader Ginsberg has left the Supreme Court without its most prominent progressive influence, and only three justices with left-leaning views remain. Amy Coney Barrett, the President’s chosen candidate to succeed Ginsberg, brings unquestioned conservative credentials to a judicial body that is already tilting rightward. Her confirmation would dramatically shift the ideological composition of the court. Combined with hypocrisy from Republican senators with regard to nominations in election years, this realignment would have troubling consequences for the future of one of our country’s foundational institutions. Preserving the Supreme Court requires patience from the Senate, who should allow the winner of November’s election to determine the next Supreme Court justice.

The past decade has seen a Supreme Court marked by close decisions and decisive swing votes. This has been a direct result of its composition: a five to four conservative majority, with Republican-nominated Justices John Roberts and Anthony Kennedy ruling from time-to-time against the policy goals of the Republican Party. Roberts demonstrated a level of independence in National Federation of Independent Business v. Sebelius, where his reading of the Affordable Care Act’s individual mandate saved it from being ruled unconstitutional. Kennedy did the same time and time again, most notably in Obergefell v. Hodges, which codified the constitutional right for same-sex couples to be married. This court also delivered several victories for conservatives, such as Burwell v. Hobby Lobby, which prevented corporations from having to provide their employees with insurance plans that cover contraceptives, and Citizens United v. FEC, which codified the rights of corporations to engage in political speech. The Supreme Court of 2010 to 2020 was a swing court free of any consistent lean towards one political wing or the other. This has been good for the public’s perception of the Supreme Court as an institution. Since 2010, the court has enjoyed approval ratings falling around 45-55%, outperforming President Trump’s approval ratings and matching that of President Obama. It is important that the Court continues to be seen this way. The Supreme Court’s business often consists of directly intervening in the actions of duly-elected state and federal bodies. The Court must be widely seen as legitimate in order to carry out that task effectively. Fortunately, the Court’s standing in the eyes of the public is strong, which means that it can act effectively as an arbitrator and an interpreter of our laws. 

This will change if Amy Coney Barrett is confirmed to the Supreme Court. If Judge Barrett is confirmed, the days of a moderate 5-4 conservative majority that is responsive to public opinion will be over. Instead, conservatives on the court will outnumber liberals by a factor of two-to-one. We will likely see conservative victories handed down again and again on issues like healthcare, DACA, LGBT discrimination, abortion, gun ownership, and potentially even the outcome of the 2020 general election. While this would be enough to enrage Democrats in any scenario, the way Republicans have gone about nominating justices has added even more tension to an already heated process. In the lead-up to the 2016 election, Republican Senate leaders blocked President Obama’s nominee to replace Antonin Scalia, Merrick Garland, under the guise of giving the American people a voice in the selection of their next Supreme Court justice. Republican senators formulated a new and previously unheard-of rule, that Supreme Court vacancies should not be filled during election years in the interest of empowering the American people to be more involved in their selection. While controversial at the time, one can understand the populist principles behind this decision. Now, only four years later, we find Republican Senate leaders throwing away these principles in a clear effort to seize enduring control of the Supreme Court. This is unconscionable and a terrible decision for the future of the Court itself.

It is already dangerous enough that the President and Republican Senate leadership are aiming to confirm a Supreme Court justice two weeks before an election. This actively deprives the American people of that critical chance to voice their will and decide the course of federal jurisprudence. This was true in 2016 and remains true now. What makes this situation truly disheartening is Republican senators’ plain failure to remain true to their own word. Sen. McConnell was clear in 2016 that he thought the American people deserved a chance to help choose Scalia’s replacement. Now that another conservative justice is on the line, McConnell and numerous other conservatives leaders have fully backtracked on his 2016 statement. Sen. Lindsey Graham practically begged opponents to “use my words against me,” promising not to fill a Supreme Court opening if it occurred in the last year of President Trump’s term. Seeing the Supreme Court’s composition shift this sharply would probably lead to unpredictable consequences in the best of times. If it sees its composition change in conditions like these, however, something is sure to give.

Congressional Democrats have already begun to talk openly about adding extra Supreme Court justices in order to dilute the votes of conservatives on the Court. Franklin D. Roosevelt attempted to do the same in 1937 in the face of a Supreme Court that continually ruled portions of his New Deal legislation unconstitutional. At the peak of efforts to pack the court, Justice Owen Roberts greatly softened his opposition to the New Deal, halting those efforts and preserving the institutional stability of the Supreme Court. The same option might not be available to the Court if Barrett is confirmed. The issue Democrats have doesn’t relate to any ongoing judicial battle, it has to do with the manner by which Supreme Court vacancies are already being filled. There will be immediate pressure to add extra justices if Biden wins the presidency and Democrats take the Senate. If we make it to June and the Court turns out to be less right-leaning than some might fear, the tension surrounding the Court issue could ease. The issue is they might not make it that long before action is taken.

On the other hand, Democrats may well decide not to pack the Court. All it would take is one or two older Democratic Senators to refuse to get rid of the filibuster—not an unrealistic outcome at all. Nevertheless, the Supreme Court’s institutional legitimacy would still be at risk. It is important to remember that the Court’s traditional power of judicial review—its ability to declare laws and statutes unconstitutional—was not endowed on it by the Constitution. The Court gave itself that power, one of the results of the case Marbury v. Madison back in 1803. While there have been few challenges to this power in the years since, we live in intensely polarized times. The potential exists for a sweeping ruling on abortion or another one of our modern political cleavages to trigger a legitimacy crisis. All it would take is the president or even a governor deciding not to listen to the Supreme Court if they believe they stole their way to a majority. There is an easy way to avoid this potential crisis: let the winner of November’s election fill Ruth Bader Ginsberg’s seat.