Amy Coney Barrett will be fifth Supreme Court Justice appointed by Republican Presidents who did not receive majority of popular vote

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Dear Readers,

Yesterday, we emailed you about In Accordance With, a short film by the Meerkat Media Collective that depicts a set of abortion restrictions that are already in place in a number of states, and that could be dramatically expanded if Roe v. Wade is overturned or curtailed by the Supreme Court. This is a live threat, as the Republican-controlled Senate rushes to confirm 48-year-old Amy Coney Barrett for a lifetime appointment to the Court less than two weeks before Election Day. Barrett’s all-but-certain confirmation means that six of the Court’s nine justices will be Republican appointees, including five appointed by presidents who lost the popular vote. Absent radical procedural reforms, these right-wing justices will control all interpretation of federal law for decades, and be poised to block the progressive policies demanded by a growing majority of the electorate, not only on abortion rights, but on labor, the environment, criminal justice, civil rights, and even the basic procedures that will determine the outcomes of elections—including the one immediately before us.

Barrett is a product of the Federalist Society pipeline, which is hard to describe accurately without sounding like a conspiracy theorist—it basically means that she is the culmination of a decades-long project by right-wing billionaires like the Koch family to take over the federal judiciary and reverse a century of liberal economic regulations and social justice advances. Barrett, by the accounts of those who have studied and worked with her, is the perfect vessel for this ambition. She is disciplined and poised; she knows exactly what to say and what not to say to impress mainstream legal elites, establishment journalists, and old-guard senators like Dianne Feinstein, the ranking Democrat on the Judiciary Committee, whose farcical handling of last week’s hearings drew heated criticism from progressives and from Feinstein’s own Senate colleagues. Those hearings are likely the main reason that 51% of the public now supports confirming Barrett—a 14-point increase since her nomination was announced last month, even as support for Trump and the GOP is in freefall.

Last week, Feinstein embraced her Republican Judiciary Committee counterpart Lindsay Graham at the end of the Barrett hearings, which she called “one of the best set of hearings that I’ve participated in.” This morning, in an apparent shift in tone, Feinstein joined Senate Minority Leader Chuck Schumer and every Democrat on the committee in boycotting—and thus refusing to lend any further legitimacy to—the confirmation process, while the Republican majority on the committee voted unanimously for Barrett’s confirmation to proceed. Although the Democrats have little chance of preventing the confirmation with this boycott, one can only hope that it augurs more than symbolic resistance to the status quo.

All polling now suggests that Joe Biden will likely prevail in the electoral college. If he does assume the presidency in January, and if Democrats are able to secure a bare majority of the Senate and retain control of the House, Biden’s accomplishments in office will depend on the party’s willingness to bend and even break the rules and norms that have governed Washington for generations. It’s one thing to call out the hypocrisy of the GOP—which insists on confirming Barrett right before the 2020 election when they refused to confirm Barack Obama’s nominee to the Court, Merrick Garland, for 10 months before the 2016 election—as Schumer did this morning. It’s another to be willing to exercise power as ruthlessly as Republicans like Senate Majority Leader Mitch McConnell have, without regard for tradition or collegiality or any principle other than that the will of the majority of Americans should have some influence over how we are governed.

Leading Democrats have been dropping hints for weeks that “court packing,” a strategy unsuccessfully attempted by the Roosevelt administration in 1937, might be on the table should Biden win. Essentially, this would mean expanding the Court by a significant number of members beyond the long-established nine—a number that is not specified anywhere in the Constitution—allowing Democrats to shift the ideological balance in favor of liberal justices. After initially dodging the question of whether he would commit to such a strategy, this morning Biden floated a bipartisan commission that would explore wider avenues of judicial reform, which might mean imposing age or term limits in addition to court packing. “Bipartisan” is a potential red flag here, as it’s hard to imagine even relatively centrist Republicans sacrificing the power conservatives have built up over the judicial system. But the fact that Biden is saying that all options are on the table means there is some limited cause for optimism.

We shouldn’t indulge any false hope that Biden is a secret radical leftist, but it’s plausible that underlying political circumstances could compel a Biden administration to take bigger procedural risks than the Obama administration did. For instance, recent polling suggests that nearly two-thirds of Americans support the Affordable Care Act and about four in five support protections for people with pre-existing conditions, even though these policies are existentially threatened by conservatives on the Supreme Court. Not only will any kind of bold progessive agenda on healthcare, climate, immigration, and countless other issues be dead on arrival with a 6-3 conservative Court—it will be impossible to prevent backsliding on decades of progressive wins. For Biden’s presidency to be anything short of a disaster, he and leading Senate Democrats will have to get more aggressive than most of them have ever been over their long careers. As Osita Nwanevu wrote in The New Republic this week, the Constitution itself is currently functioning the way it was originally designed, as an impediment to the majoritarian democratic rule to which Democrats and their supporters are theoretically committed, and on which a successful Biden presidency would depend. And as Adam Serwer wrote in The Atlantic this morning, court packing may be the only way to protect the basic voting rights hard-won by the civil rights movement.

It will take the sustained fury of progressive activists to make sure Democrats remember that. As a New Yorker, I’ve noticed that the usually mild-mannered Schumer has taken on an increasingly combative and left-leaning posture over the past year, and I can’t help but speculate that this is in response to recent wins by left-wing and progressive candidates in New York’s Congressional and State Senate primaries. There are more self-described socialists in Albany now than there have been in a century, and Schumer is up for reelection in 2022, as rumors abound that he might face a primary challenger like Rep. Alexandria Ocaso-Cortez. Gov. Andrew Cuomo is also up for re-election that year and facing heat from progressive state senators like Alessandra Biaggi. Whether or not such primary challenges actually happen, they represent growing pressure on some of the most powerful establishment Democrats to shift their tone, strategy, and focus in the wake of the Trump era’s one-sided war on norms.

In a Responsa published last week, the Jewish Currents editorial staff argued that by placing an almost religious level of faith in the Supreme Court as an instrument of justice, a generation of Jewish liberals has intellectually and spiritually exhausted itself—that a “Jewishness that has locked itself in a fantasized vision of the recent American past is deferring its panic about the inability to imagine where we’re headed.” Looking beyond the election, if we’re headed anywhere other than the abyss, it will be because we demanded an approach to politics at the highest levels of power that reflects the stubbornness, tenacity, and creativity of the most radical organizers.

David Klion

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