I decided to focus my career on constitutional law because I saw it as an essential tool for improving people’s lives. And for many years that was true. The Supreme Court, ruling on constitutional challenges, has extended rights and protections to a wide range of Americans.
But as it will be formed after Judge Amy Coney Barrett’s hasty confirmation, the court is unlikely to continue improving the company. With six deeply conservative judges forming a solid majority, the tribunal is rather on the verge of starting to erode rights and undermine equality.
How did we get here? And, more importantly, what can we do about it?
To some extent, court vacations are the result of a historic accident. Richard Nixon had four court appointments in his first two years as president, while Jimmy Carter had none in his four years in the White House. Barack Obama has appointed two judges in eight years in office, while Donald Trump has appointed three in less than four years.
Since 1960, Democrats have occupied the White House for 28 years and Republicans for 32 years. But meanwhile, Democrats have appointed eight Supreme Court justices, while Republicans have appointed 15. Since 1988 – and I’m choosing this year because none of the current justice was appointed before George HW Bush’s presidency. – there have been 16 years of Democratic presidents (Bill Clinton and Obama) and 16 years of Republican presidents (George HW Bush, George W. Bush and Trump.) But Republican presidents have appointed seven judges, while Democratic presidents have no ‘only retained four. On a ground so often divided, that makes all the difference.
And that doesn’t tell the whole story. He leaves out Republican manipulation of the process, including when Senate Majority Leader Mitch McConnell (R-Ky.) Refused to allow the Senate to consider Obama’s court candidate Merrick Garland, keeping the nomination open to Trump. And he ignores the fact that recent Republican presidents have always chosen extremely conservative rather than moderate judges.
Barrett was as conservative as any federal judge in the United States. Its membership in Clarence Thomas, Samuel A. Alito Jr., Neil Gorsuch and Brett M. Kavanaugh creates a tribunal that will be as conservative as any in American history.
It is not accidental. The more conservative base in the Republican Party has made it clear for decades that it cares a lot about judicial appointments, and Republican presidents have made their choice to please this constituency. Abortion played a key role. It is striking that we now have a tribunal with six Catholic judges, one Episcopalian who was brought up in the Catholic religion, and two Jewish judges.
To be clear, I don’t believe anyone should be selected or opposed because of their religion. But the current religious composition of the court is not the result of chance. One of the ways that Republican presidents have signaled their opposition to abortion rights is through their choices for court. I have no doubt that there are now five judges to set aside Roe against Wade, and I think that will happen soon.
What can progressives do about it? To do nothing is to accept a conservative court for many years. Barrett is 48 years old. If she stays in the field until age 87 – the age at which Ginsburg died – she will be a judge until 2059. Gorsuch is 52, Kavanaugh 54, Roberts 65, Alito 70 and Thomas 72. He is easy to imagine them. majority for another decade or two.
The court is far too important for Democrats to engage in unilateral disarmament. Assuming they win the White House and both Houses of Congress on November 3, they must seriously consider expanding the size of the Supreme Court. I realize, of course, that this might invite Republicans to do the same someday when they control the Presidency and Congress. But the alternative is to accept a very conservative court for a long time.
It is also time to consider term limits for Supreme Court justices. Fortunately, life expectancy is much longer today than it was in 1787 when the Constitution was written. Clarence Thomas was 43 when he was confirmed as a judge in 1991. If he serves until the age of 90, the age at which Judge John Paul Stevens retired, he will have served as a judge for 47 years. years. It’s too much power in the hands of one person for too long.
I am deeply afraid of what it will mean to have a majority on the Supreme Court that embraces the values of the far right of the Republican Party and that is much more conservative than the electorate. Doing nothing cannot be the answer.
Erwin Chemerinsky is Dean of the Law School at UC Berkeley and a contributor to Opinion.