Politics A politicized Supreme Court? That was the point
Supreme Court Justice Stephen Breyer needs to retire now - or the country may be doomed
Democrats should be able to appoint a judge to replace the 82-year-old Breyer or the conservative supermajority will get even stronger.With both the White House and Senate in their control (for now), Democrats have what has become the rare moment to replace the longtime liberal justice on their own terms and stem the Court's undemocratic move to the right.
Self-promotion always comes with risks, especially when it involves denying the obvious. President Nixon only validated suspicions when he insisted at a televised press conference that "." President Clinton drew hoots of laughter when, as a candidate, he admitted that he had once tried marijuana, but " ." And when President Trump knowing anything about the hush-money payments to porn actress Stormy Daniels, well, let's just say that it took big-league credulity to give any credence to that one. As so often happens with provocative self-justification, these denials simply heightened mistrust while reinforcing the original allegations.
Waning Trust in Supreme Court and a Divided Public on Abortion Converge
Like so much else in this nation, the Supreme Court, long considered far above the fray, has become a partisan battleground. Progressive activists have remained unyielding with their calls to expand the size of the Court and to pack it with liberals as a counter-balance to the now 6-3 conservative majority. And conservatives who held their nose to vote for Donald Trump in exchange for his promises to overturn Roe v. Wade and to protect the Second Amendment now want their reward. Accordingly, the Supreme Court has hit a record low in the public’s mind, with only 40% approval in its performance, according to Gallup.
If Supreme Court Justice Amy Coney Barrett had been better aware of that history, she might have chosen her words more carefully in aat the University of Louisville. As it was, Barrett stood next to Senate Minority Leader Mitch McConnell (R-Ky.), who founded the university's eponymous McConnell Center in 1991, and declared that her objective that day was to convince the audience that the Supreme Court "is not comprised of a bunch of partisan hacks."
Barrett's protestation did not come out of nowhere. Just like Nixon, Clinton and Trump, she was responding to very pointed criticism in the press, in this case the many charges that the Supreme Court had become thoroughly politicized by Trump's three appointments, which created a powerful 6-3 conservative super-majority.
Biden's Supreme Court commission 'divided' on adding justices but warns of 'considerable' risk
President Biden's commission to study the Supreme Court is working as polls show slipping support for the high court, particularly on the left.As had been expected, the 36-member panel steered clear of policy recommendations and instead offered arguments in support of and against "packing" the court beyond its current nine seats. The group also considered – but did not endorse or oppose – term limits, changes to the court's procedures and judicial ethics.
Nor was Barrett the only justice to embark on what has been called a "" to shore up the Court's newly-questioned legitimacy. Delivering the annual at Notre Dame, Justice Clarence Thomas told the audience that his colleagues do not rule on the basis of "personal preferences," and he rebuked those who believe that a justice is "like a politician."
Also speaking at Notre Dame, Justice Samuel Alito denied that any of the Court's recent rulings had been "sneaky or dangerous." He tookat the Court's critics, dismissing the "political talk [that] feeds unprecedented efforts to intimidate the court or damage it as an independent institution."
Justice Stephen Breyer was only slightly less defensive - studiously avoiding any suggestion of hackery or sneakiness - in a series of interviews about his new book. Responding to calls for his retirement, while Joe Biden is president and Democrats still control the Senate, Breyerthat "a judge's loyalty is to the rule of law, not the political party that helped to secure his or her appointment."
Texas' six-week abortion ban: Biden administration takes case back to Supreme Court
Supreme Court justices are expected to move swiftly to address Texas' abortion law after an emergency appeal by the Biden administration.The appeal gives the high court a chance to temporarily block enforcement of the most restrictive abortion law in the country for the second time in as many months and represents the latest development in a whirlwind of litigation around the Texas ban.
However much the Barrett/Thomas/Alito/Breyer attestations resonated with their friends and supporters, they did nothing to defuse the increasing claims of politicization. As Dahlia Lithwick and Mark Joseph Stern pointed out on, the Court has lately fulfilled a virtual Republican wish-list, making it "harder for minorities to challenge racist voter suppression laws, harder for unions to organize, and harder to learn who is contributing funds to political groups," while also allowing Texas's bounty-hunting anti-abortion law to take effect (in an unsigned opinion issued at midnight). If it wasn't a politicized court, it certainly had the of one.
Just last week, President Biden's Presidential Commission on the Supreme Court of the United States released a lengthy set of "" that undermined any meaningful attempts at depoliticization, or even balance, for the Court. beyond the current nine justices - supported by a growing number of Democrats and clearly permissible under the Constitution - was essentially brushed off for its ostensibly "negative effects" on the Court's "long-term legitimacy" that could "undermine its role in our legal system." (At least of the 34 commissioners have publicly disagreed with this supposition.)
Administration makes final pitch to block Texas abortion law
WASHINGTON (AP) — The Biden administration, in its final pitch to block Texas' ban on most abortions, is warning the Supreme Court that none of its decisions would be safe if it allows the state law to remain in force. The high court is weighing the Justice Department's request to put the law on hold at least until the legal fight over it is resolved. The justices could act any time. The law has been in effect since September, aside from a district court-ordered pause that lasted just 48 hours, and bans abortions once cardiac activity is detected, usually around six weeks and before some women know they are pregnant.
Republicans, of course, never had qualms about tinkering with the Supreme Court's composition, having fashioned an eight-member court during the nearly year-long blockade of Merrick Garland's nomination in 2016. But determining the Court's size is evidently an exclusively Republican prerogative.
The Commission did allow thatmight be desirable, although Biden later said that he is to the idea. In any case, that reform would likely require a Constitutional amendment, which would not be fully operative until somewhere between 21 and 46 years after ratification (depending on the details). Under most term limit proposals, a child born tomorrow could grow up, attend college, graduate from law school, and still be sworn into the Supreme Court bar by Justices Barrett, Kavanaugh and Gorsuch.
Meanwhile, Mitch McConnell is surely smiling, delighted that he has masterminded the formation of a Republican-friendly Supreme Court that may endure for decades. If McConnell were asked whether the Court has been politicized, he might well quote then-candidate Barack Obama's candidto a question about his youthful marijuana use.
Did he inhale? "That was the point."
Steven Lubet is Williams Memorial Professor at the Northwestern University Pritzker School of Law and the author of
Supreme Court to hear challenge to EPA climate change rules for power plants .
The Supreme Court will decide if the Trump administration erred in how it rolled back Obama-era carbon emission limits for power plants.The appeal has its genesis in an Obama administration effort in 2015 to significantly reduce power sector emissions to address climate change. The Supreme Court blocked those regulations from taking effect and President Donald Trump’s administration repealed the rules in 2017, easing the requirements on the plants.