Given remarks by President Trump and allies, the newest justice on the Supreme Court is expected to actively and judicially do what Congress refused to do legislatively regarding health care. She is also expected to seal the deal for Trump if the presidential election winds up in the high court as it did in 2000. Given such Republican commentary, Amy Coney Barrett shrewdly mounted a brief counteroffense after taking the first of two oaths this week: “A judge declares independence not only from Congress and the president but also from the private beliefs that might otherwise move her. The judicial oath captures the essence of the judicial duty the rule of law must always control.”
Americans ultimately will be the judge of that.
Meanwhile, Democrats must accept reality: They got outfoxed in the battle to ideologically dominate the Supreme Court. Did they really believe Republicans in 2020 would hold to their 2016 principle that Supreme Court justices should not be confirmed in presidential election years? The GOP argument that Democrats would have confirmed a justice had dynamics favored them is irrelevant, given they never proclaimed such a principle. Republicans did. The problem for everyone now is that Democrats feel doubly cheated and with justification are discussing packing the high court, which is as constitutional as the Republicans’ dubious 2016 principle. None of this bodes well for the concept of judicial review, also not spelled out in the Constitution.
Justice Barrett and fellow Trump appointees up and down the federal judiciary embark into an era when their rulings may well undermine the very authority of the courts, a fate more and more likely as Republicans and Democrats politicize the courts. Republican Sen. Ted Cruz of Texas on Oct. 19, with the Barrett confirmation then virtually in the bag, introduced two proposals to maintain the number of justices on the bench. The first prevents expansion or contraction of the Supreme Court by constitutional amendment, also known as the “Keep Nine” amendment. The second stops Democrats from passing any court-packing legislation in the Senate.
“Make no mistake, if Democrats win the election, they will end the filibuster and pack the Supreme Court, expanding the number of justices to advance their radical political agenda, entrenching their power for generations and destroying the foundations of our democratic system,” Cruz said. “We must take action before Election Day to safeguard the Supreme Court and the constitutional liberties that hang in the balance.”
While any court-packing scheme would surely lead to further legislative and judicial abuse and further battering of the federal judiciary’s crumbling legitimacy, Cruz has a lot of gall blasting Democrats after Republicans’ reversal on their own supposedly cherished principle and their 2017 scrapping of Senate filibuster rules to clear the path for Neil Gorsuch. One wishes Chief Justice John Roberts had called out Republicans after they denied Judge Merrick Garland even a confirmation hearing in 2016 when we pressed him to stand tall for the high court’s integrity. He did nothing. Now he has lost any leverage to keep the high court from circling the bowl on its way to irrelevancy.
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