Matter Loading #2: US Supreme Court Edition
As promised, I will summarize the debate surrounding the vacant seat of the US Supreme Court in this edition. Many things have happened since the first edition was published. I will try my best to recap as much as I can in this edition. Unfortunately, I didn’t publish my unfinished draft about the US supreme court but I am sure this topic would not just go away, another tournament will surely make a motion related to this event.
Another big thing that happened recently is the passing of the Omnibus Law and the protests that follow afterward. While seemingly unrelated, Omnibus Law and the rush to fill the US Supreme Court seat was similar in a sense that both are an exhibition of power politics in a country that is experiencing democratic backsliding.
I. The Vacant US Supreme Court Seat
Who is Ruth Bader Ginsburg?
Last month, Ruth Bader Ginsburg died at the age of 87. Before she joined the bench of the US Supreme Court, she was the first woman who was granted the full professorship at the University of Columbia. In her career, she was famous for tackling gender discrimination cases as a part of the Women’s Rights Project, which later she headed. A good summary of her career can be found here.
Ruth Bader Ginsburg was also a part of the US Supreme Justice that went through a massive change in how the public perceives the Court. An appointment of a new Supreme Court Justice is more politicized and more polarized. The justices are also reaching a celebrity status which was against the old norm of US Supreme Court Justices. Ruth Bader Ginsburg was a prime example of this:
The pleasure Ginsburg took in her own celebrity, as she became a feminist icon, is understandable, if also troubling. Historically, the Court is meant to be insulated from public opinion, which also requires of the Justices that they lead largely private lives. Ginsburg was by no means the first to flout this convention, but she flouted it considerably, appearing on late-night television shows and becoming the subject of documentaries, feature films, and books for children.
Ginsburg later came to regret how the Court has turned out to be. However, many believed that her influence in politics was for the better. Her decisions and dissents influence progressive politics and rhetoric. She has an extraordinary legacy in the courts, but her legacy can also be found in our everyday life.
One of the most notable spots in her legacy though, if not the most notable spot, is her refusal to step down from the Supreme Court in 2013. At that time, she has been diagnosed with pancreatic cancer and the Democratic party was in control of the senate with Obama as the US president. Many worried that Republicans could retake the senate, a prediction that turned out to be true. However, Ginsburg refused and said that people who think that they can get a Supreme Court Justices like her was misguided.
In hindsight, I think it is fair to say that this was a mistake. The Republican Party went on to win the Senate majority in Obama’s term, blocking the appointment of Merrick Garland to replace Antonin Scalia. Afterward, Trump won the presidential election and appoint Robert Kavanaugh to the Supreme Court. At this point, retirement was not an option for Ginsburg, since it would mean a 6–3 conservative majority in the Supreme Court.
Emily Bazelon, an NYT writer who wrote about why Ginsburg refuses to step down shares the opinion that Ginsburg betted on Hillary Clinton winning the election, which did not end well for sure. Ginsburg had the right to decide when she wanted to step down and she exercised said right on her terms. However, maybe this is not a decision that should be left to the individual sitting in the Supreme Court in the very first place.
What is to be done?
In an act of absurd hypocrisy, Mitch McConnel led the Republican party to immediately proceed to appoint the replacement of Ruth Bader Ginsburg. If everything went as planned, Amy Conney Barret would be appointed just days before the US general election.
In 2016, Mitch McConnel refuses to even hold the senate hearing for Marrick Garland. This was what he said in 2016, sourced from USAToday:
“Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court. It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia”
Funny how things turned out right now. This statement was given in February 2016, 8 months before the election. Yet, The Republican Party intends to fill the Supreme Court vacancy 2 months before the election. That is despite a pandemic outbreak that happened in the Senate and White House, which happened after a rose garden ceremony to announce Amy Conney Barret as the nominee for the Supreme Court.
Everything that The Republican Party did was constitutional but it betrays the political convention that the next president should be the one filling the Supreme Court vacancy if the vacancy was opened near the election, which in our contemporary politics is strengthened by McConnel himself. In other words, McConnel had a point in 2016 and directly rebut it in 2020. Whether or not there is a norm for the confirmation to wait when the vacancy is open in the election year is still up to debate, however. National Review wrote an article showing that the precedents actually shows that the president and the senate have always put nominations and vote for them when they had the power to do so, which means the norm to wait when it was an election year doesn't exist.
The Democrat was left with little choice here. The Republican had a 53–47 majority, even if 3 Republican senators defected, Mike Pence as the VP would cast the deciding vote. According to McConnel, they already have the votes to confirm Barret, which would be done on the Senate floor on October 26.
Now, what is to be done?
One of the most popular agenda to respond to this development is by court-packing. To put it simply, the president and the congress need to just increase the number of Supreme Court justices and appoint the new seats with new justices. Constitutionally, there is no limit on the number of Supreme Court and historically, the number of Supreme Court justice did change from time to time. So technically, The Democratic Party would be able to do this if they won the presidential election and the senate majority.
Court-packing has been known as a fringe strategy that has seen a resurgence since The Republican Party blocked Garland nomination. It was hugely unpopular because it was seen as an invasion of judicial power by the executive and legislative power. When Franklin D. Roosevelt pushed this idea, even his supporters were opposed to this and the Senate rejected it 70–20. The same thing happened when the case for court-packing rose in popularity in 2018, Bob Bauer wrote how liberal should not undermine the institutional legitimacy of the Supreme Court by court-packing. With the blatant power politics from Republican though, Susan Hennesey and Quinta Jurecic argued that restoring the legitimacy of the Supreme Court required court-packing.
This all depends on Democrats’ intention to add seats under a Biden administration — this must be a threat that Democrats really would follow through on. If Democrats can convince Republicans that confirming Barrett would result in additional justices appointed by a President Biden, perhaps Republicans would step back from the brink and refrain from confirming Barrett. But if she is confirmed, Democrats should add seats to the Court; the most common suggestion has been two, to balance out Republican appointments to Antonin Scalia’s and Ginsburg’s seats. This would change the political environment from a situation in which one party routinely plays hardball and the other party gets rolled, to a situation in which both parties have an incentive to cooperate in order to avoid the disaster of an ever-expanding Supreme Court flipping back and forth between parties as power changes hands. It also corrects the imbalance of a Court stacked with Republican appointees, returning both parties to something closer to an even playing field.
Obviously, this proposal was met with controversy. The Right was obviously not pleased and insists that McConnel didn’t violate important political norms nor does it lack legitimacy. On the other hand, the Left also shows little interest in supporting court-packing despite opposing the nomination of Barret, some also criticized the proposal whose purpose is unclear and even weird. Instead of court-packing, many on the Left believe that the Supreme Court should be disempowered instead. Samual Moyn from Yale, for example, believes that the court has been too powerful that it actually converts the politics of democracy into a referendum of the council of elders. In this case, the historic left project was to turn the country into a more majoritarian model.
Since 2016, there has been talk of packing the court in response to the denial of Barack Obama’s last nomination, Merrick Garland, and in response to Ginsburg’s death this talk is reaching a crescendo. But actually, court packing was not what the socialists wanted. They wanted to disempower the court through various devices, like getting rid of judicial review (the power to invalidate popular legislation as unconstitutional), which is a late development in US constitutional history. And socialists also devised various strategies of disempowering the court, like jurisdiction stripping (prohibiting the court from hearing cases) or requiring a supermajority rule for it to strike down laws.
Joe Biden himself refuses to commit to a position on court-packing, even while Donald Trump accuses him of planning to do so if he wins. It remains to be seen whether the Democrat would want to undergo this path. There is always an alternative of not doing anything and just hopes that the next vacancy for Supreme Court will be in the Democrat’s favor. But that depends, is the prospect of Amy Conney Barret as a Supreme Court Justice acceptable?
Who is Amy Conney Barret?
The reason why Amy Conney Barret is nomi
