Saturday, November 27

President Biden: Texas shows that we can’t wait any longer. Time to pack up the pitch | Lawrence Douglas

WIlliam Brennan, the great justice of the United States Supreme Court, liked to greet his incoming paralegals with a vigorously simple definition of constitutional doctrine: five votes. “You can’t do anything around here,” Brennan said, wagging her fingers, “without five votes.”

Underscoring the truth of Brennan’s harsh definition was the court’s 5-4 ruling this week (with Chief Justice John Roberts disagreeing along with his three liberal colleagues) to leave standing a Texas law that makes the ordinary citizens in de facto bounty hunters empowered to sue anyone who performs or “aids and encourages” an abortion on a woman after the sixth week of pregnancy. It is true that the unsigned one-paragraph majority opinion emphasized that by allowing Texas law to go into effect, the court was not ruling on the statute’s ultimate constitutionality.

And yet. As Magistrate Sonia Sotomayor wrote in a passionate dissent: “Presented with a petition to impose a flagrantly unconstitutional law … a majority of magistrates have chosen to bury their heads in the sand.” President Biden powerfully joined those who criticized the court’s decision. Stating that the ruling promises to “unleash [..] unconstitutional chaos, ”Biden vowed to work to protect the constitutional right to abortion first recognized in Roe v Wade.

How could the president do it? In April, Biden convened a bipartisan commission of academics, lawyers and jurists charged with exploring the issue of “court packaging.” The commission is due to present its report later this fall, which brings us back to the five moving fingers of justice Brennan.

There is nothing magical about number nine, the current size of the supreme court. The constitution states that there will be “a Supreme Court,” but it says nothing about the size or composition of the court; These are matters left to Congress. In the nation’s early decades, Congress changed the number of magistrates on six different occasions, from five to ten, before deciding on nine in 1869. In 1937, Franklin Roosevelt, frustrated by a reactionary supreme court that resisted His initiatives of the New Deal, they proposed expanding the supreme court bench to 15. Congress rightly rejected that court packaging plan as an attempt to manipulate the court to generate specific results.

Biden, however, could now justly and legitimately propose to expand the number of judges from nine to 11. Such an expansion would counter the abuse of constitutional rules that allowed the confirmation of Neil Gorsuch and Amy Coney Barrett and the installation of the unconditional conservative bloc responsible for the Texas decision.

This is not to say that the effort is successful. Assuming Biden could find support in the House, expanding the number of justices would require Democratic senators to first remove obstructionism, something that Senators Joe Manchin and Kyrsten Sinema strongly oppose. And we know that Republican lawmakers, led by Mitch McConnell, would accuse Biden of dangerously politicizing the court.

To which we can respond: pah-Leeza. After all, it was McConnell who, in the wake of Antonin Scalia’s death nine months before the 2016 election, announced: “The American people should have a say in selecting their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president. “

Armed with a rule of his own making and a Republican majority in the Senate, McConnell flagrantly refused to grant a hearing to Merrick Garland, Barack Obama’s candidate to fill the Supreme Court vacancy that ultimately filled Trump’s election, Neil. Gorsuch.

But when Ruth Bader Ginsburg died, six weeks before the 2020 election, McConnell suddenly issued a new rule. It turns out that the American people should no have a say in the selection of Supreme Court judges in an election year in which the incumbent president is a Republican.

The confirmation of Amy Coney Barrett did more than install a supermajority of conservatives in court. The place of power in court shifted from the more conventional conservatism of Judge Roberts to the more ideological and rigid extremes of Clarence Thomas and Samuel Alito.

As the Texas ruling underscored, this is a far more conservative court than the nation whose constitutional meanings it must protect. And it is a court that owes its composition to the triumph of undemocratic processes, in which the majority of its members were nominated by a president who lost the popular vote and / or were confirmed by a block of senators elected by a minority of votes. voters.

By proposing the addition of two additional justices, Biden could hardly be charged with tit-for-tat politics or further politicizing the court. The Conservatives would still enjoy a 6-5 majority, but with Justice Roberts, a staunch institutionalist, serving as the swing vote. If Biden were successful, such an expansion would make the court more legitimate, not less.

  • Lawrence Douglas is the most recent author of Will He Go? Trump and the Looming Election Meltdown in 2020 and also serves as an opinion writer for The Guardian US. Teaches at Amherst College

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