Democratic presidential nominee Joe Biden late on Monday tore into Senate Republicans for the “rushed and unprecedented” confirmation of Amy Coney Barrett to the Supreme Court amid the election, condemning its potentially damaging blow to the Affordable Care Act just days after the election.
I don’t see an upside in bellyaching about Barrett. It was forgone conclusion she was going to the Court so why make news of it? Justice Barrett will be considered illegitimate by the majority of Americans as will the SCOTUS. Ms. Barrett will not be able to hold back her religion and will relish subjugating all of America under it. After all she believes God wants her to. In 2 years she won’t be safe walking down the street. She’ll be one of the unpopular people in the world and her evasive smugness as shown during her confirmation hearings will do her no good in fixing that.
She’ll either change or leave the Court within 5 years.
True. But not relevant to the future. The Democrats are now faced with the choice of (a) having the Supreme Court invalidate almost every advance made since the New Deal (I expect that the Civil Rights Act, labor laws, and administrative regulations will overturned on the grounds of “liberty” interests) and (b) engaging in a fight dividing Americans over changing the powers and/or expanding the Federal Courts.
My expectation is that we will have a combination of both. First, the Court will act to overturn popular laws, for example by holding at “religious liberty” allows a restaurant owner to exclude Blacks. Then there will be a brutal political fight over court reform. This may take at least two Presidential terms to accomplish, and will be impossible if the GOP were to regain either the Senate or the White House.
It gets votes and it prepares the battlefield for the upcoming showdown over expanding the courts.
If we win the Senate this year, and pick up more seats in 2022, I see it as an almost certainty that Biden will expand the courts. Possibly sooner. This is the value he has in only serving one term, he can do things without worrying about his re-election.
The problem with trying to rule the country via courts only, is courts are essentially a reactive force, not a proactive force… And they take a very real risk of getting too far out of the mainstream if they try too hard to be “proactively reactive”.
" The rushed and unprecedented confirmation of Amy Coney Barrett as Associate Justice to the Supreme Court, in the middle of an ongoing election, should be a stark reminder to every American that your vote matters,” Biden said.
Joe Biden gets both the tone and the substance just about right on this.
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I wish I could believe you, but I fear you’re optimistic…
Perhaps her Commander and their children will indeed get tired of having Secret Service protection all the time…or learn to dislike the intense scrutiny which will never go away as long as she stays there, forcing her to decide to leave.
But I agree that this was, at the least, a short-term tactic for a power grab for the dream of a GOP autocracy/theocracy.
Smells like the 1930s in here…
Only if the Republicans manage to hang on to the Senate. If not, the filibuster is gone, and court reform can be done in a week. We can’t get rid of the lifetime appointment aspect of Federal judgeships, because that would require a Constitutional amendment. But any and all other changes are simply a matter of both Houses passing the legislation, and a Democratic President signing it into law.
The other option has a certain appeal, but is understandably unpopular - a Democratic administration could decide that SCOTUS doesn’t have the power to overturn duly-enacted legislation. The Constitution doesn’t really say that it does. We’ve just accepted the logic of Marbury for two centuries. Following an adverse ruling on some piece of legislation, the administration could say, “We’re considering the Court’s ruling, and will be discussing it with Congressional leaders,” and then just go on its merry way. To paraphrase Stalin, “How many divisions does the Court have?”
I was just gonna post “Don’t dwell on it Joe. Leave it at that.” In the context of healthcare, I think that was an appropriate point for him to make. It’s the most important issue to me personally.
Not necessarily a bad thing. FDR got stymied by SCOTUS, and started advancing a plan to change its makeup. There was a lot of political push-back, and he dropped the plan. But SCOTUS got the message, realized that they were out of step with the needs of the times, and got out of the way.
People are hungry to hear him talk about this illegitimate court. That’s a good enough reason for me for him to talk about it. To ignore it is ridiculous, it’s the elephant in the room right now.
It can’t be said enough times that they have stolen seats and these justices are illegitimate. When he does something about it, no one will be surprised. As far as honoring Marbury, would the Republicans if the situation was reversed?
6-3 is 6-3 is 6-3. That is not changing. And Biden’s term will be wasted if he’s slapped with 6-3 or 5-4 rulings on every important policy and legislative initiative he embarks upon. For certainly every single thing he tries is going to be litigated by a litany of right wing entities, along with both GOP factions in Congress.
Four new Justices flips the script to a 7-6 tilt (theoretically at least). Adding two is a waste of time. If Democrats gain the majority in the Senate and don’t expand SCOTUS every damned screed you’ve heard about them being a bunch of limp wristed cowards when it comes to ruling strongly and effectively will be borne out as true. They must seize the moment and go for the kill as if they were choking down a wild dog lunging for their throat.
The one thing I’d question here is how ‘reactive’ they are: as Senator Whitehouse laid out, the right has made a cottage industry (at least) of finding grounds and plaintiffs to bring challenges against laws so that they will be heard by a judiciary that their partisans were instrumental in appointing.
Yes, it’s relatively slow, but it can be (as, say Citizens United or the withdrawal of election oversight in formerly segregated states have shown) devastating in its implications.
Gee, Justice Roberts, it’d be a shame if something were to happen to Trump’s Court appointees… 
I have a serious question for the resident lawyers. Most cases brought before this court can be considered pre-judged - i.e. conservative cases will join the 80-0 count, while liberal cases will lose. In my mind, I imagine Dem admin lawyers refusing to answer questions from the Trump 3, under the premise that they were seated by a corrupt President and thus their questions and decisions are illegitimate.
I’m guessing that refusing to answer the questions put forward by a SCOTUS justice would carry with it some kind of contempt charge? If not, what is the downside to delegitimizing them in this way, given the foregone conclusion of their rulings?
That’s reactive. Its challenging existing laws to have them overturned…reacting to existing legislation.
Proactive would be passing new legislation to advance a cause or issue. And while the conservatives have certainly shown they are not squeamish about judicial activism and attempting to legislate from the bench, in the bigger picture, its not a sustainable concept.
“God’s plan has been fulfilled - tRump was selected for just this purpose - Hallelujah.”
How do you fight a state, with God on its side?
They must seize the moment and go for the immunization as if they were choking on a plague of facism and absurd religion.
Agreed. The Dark Money right will have cases against voting rights, labor, medicare, social security, gay rights, Roe, etc., in front of the court within months. It would be foolish for us not to assume that they already have the cases identified, the plaintiffs coached, and all the paperwork signed and ready to go. I suspect the weeks between Nov 3 and January 21 will be a bloodbath of SCOTUS hearings aimed at dismantling civil rights and the social net back to the good old days of Hoover.
ETA: They will use the (hopefully) lame duck session because Trump’s DOJ won’t defend and in many cases will join the cases.
This isnt a tactic the democrats will take because the GOP doesn’t seem overly concerned by constitutional order or norms. Jurisdiction stripping might be something they look at but that would be before the court ruled not after