The Future of the Supreme Court

The recent passing of Associate Justice Ruth Bader Ginsburg in late September has led to a controversy surrounding the judicial branch. Her passing under the currently Republican Trump administration caused a problematic uprising among Democratic politicians. Many claimed a new justice should only be appointed once the election has taken place. Democratic Senators such as Minority Leader Chuck Schumer (D-NY) were outraged with President Trump’s decision to make an appointment to the Supreme Court, tweeting on September 20, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

Much of this backlash was provoked by the perceived hypocrisy within the Republican Party when former President Obama attempted to appoint a new justice in his final year of office. He made this effort after Justice Anthony Scalia, a conservative, passed away in February of 2016, 237 days prior to the 2016 presidential election. However, Senate Majority Leader Mitch McConnell (R-KY) dismissed him from doing so, stating back in 2016, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” President Obama would go on to nominate Circuit Judge Merrick Garland; however, the Republican-controlled Senate Judiciary Committee prevented any hearings from being held for the judge. Mitch McConnell further said in 2016 that, “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.’”

Even with the past precedents that Republican senators set, President Trump would still nominate Circuit Judge Amy Coney Barrett to be the next Associate Justice on the Supreme Court, this time only 27 days prior to Election Day. The Republican Senate would ensure her placement on the court, as only a majority is needed for a Justice to be confirmed. On October 26, the Senate would confirm her with a 52-48 vote, staying along party lines apart from Susan Collins (R-ME). Senator Collins stated, “Prior to Justice Ruth Bader Ginsburg’s death, I stated that should a vacancy on the Supreme Court arise, the Senate should follow the precedent set four years ago and not vote on a nominee prior to the presidential election.” Her decision was striking to many, as she was in a close senate race with Sara Gideon (D). Judge Barrett would be sworn in that evening by Justice Clarence Thomas.

The third confirmed justice by President Trump solidified a 6-3 conservative supermajority on the Supreme Court. During the 2019-2020 term, Chief Justice John Roberts was seen as a swing vote, occasionally joining the liberal bloc of the court, as in cases such as June Medical Services LLC v. Russo and Department of Homeland Security v. Regents of the University of California, both of which resulted in a 5-4 decision solidified by Justice Roberts’ vote. However, his role as a “swing vote” has been eliminated. This was recently exemplified in the November 25th decision of Roman Catholic Diocese of Brooklyn v. Cuomo where even though the ideological right-leaning Chief Justice, sided with the liberal bloc, he would still be in the minority as newly appointed Justice Amy Coney Barrett sided with the conservative bloc, making this a 5-4 win for conservatives. Pending decisions on cases such as California v. Texas, which questions the individual mandate of the Affordable Care Act (commonly referred to as Obamacare), which now has a penalty of zero for not buying health insurance, and if it is ruled to be unconstitutional, may further demonstrate the impact of the supermajority.

Throughout Joe Biden’s campaign, the former Vice President, as well as Senator Kamala Harris (D-CA), were pressed on their views regarding “court-packing,” or adding justices to the Supreme Court in order to benefit the Democratic agenda. The Constitution does not state a maximum number of justices the Court is required to have. However, the current state of having eight Associate Justices and one Chief Justice has been in place since 1869. Both the Former Vice President and the Senator have been avoiding and deflecting questions on this topic. Back in late October, Biden told CBS, “If elected, what I will do is I'll put together a national...bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to [spectate] over [the next] 180 days [and] come back to me with recommendations as to how to reform the court system because it's getting out of whack.” While the messages about the pressing issue from the incoming administration are unclear, it should be stressed that packing the courts is not a simple process.

In the 1930s, Democratic President Franklin Delano Roosevelt attempted to pack the courts when his “New Deal” legislation was being struck down. The Judicial Procedures Reform Bill of 1937, which would ultimately fail, was proposed as a way for Roosevelt to appoint up to six new justices for every member of the court over the age of 70. In the modern era, Joe Biden would need a simple majority in each chamber of Congress to add justices. However, even if the Democrats win both Georgia Senate runoff races in January, schisms within the party might make court-packing difficult, as certain Democratic senators have implied, they do not support the idea. As the 2020-2021 Supreme Court term progresses, the supermajority on the court will make influential decisions that will shape the country for decades to come.