12:47, October 12 109 0 theguardian.com

2020-10-12 12:47:05
What Amy Coney Barrett's likely confirmation means for America

Senate Republicans have begun hearings to confirm Amy Coney Barrett as a supreme court justice. If confirmed as expected, Barrett would become the third justice on the court to be appointed by Donald Trump.

Here’s what it means:

1) What’s the significance of the likely Barrett confirmation?

The significance is hard to overstate. Barrett represents the culmination of a decades-long project by conservatives to control the high court. Her confirmation would extend the conservative reach into every corner of American life, well beyond the size of their shrinking electorate.

Barrett’s confirmation would give conservatives a bulletproof, six-justice majority on the nine-member court, which decides cases by a simple majority.

With that majority, the court could walk back rights and weaken protections on every issue of importance to progressives: healthcare, voting rights, the climate emergency, abortion, same-sex marriage, anti-discrimination measures, immigration, checks on the presidency … it’s all on the table.

2) Are the stakes really so high?

Yes. For example, a week after the election, the court is scheduled to hear a new challenge to Barack Obama’s healthcare law. Barrett has found fault with an earlier court decision that upheld the law. If Barrett ruled against the law in the new case – in a decision expected to be handed down in summer 2021 – tens of millions of Americans could lose health insurance, including people with pre-existing health conditions.

Or Barrett, a conservative Catholic who has lent her name to anti-abortion initiatives, could prevent the supreme court from striking down future state laws that place undue restrictions on abortion. Just last summer, the court struck down such a law by a narrow 5-4 majority, with chief justice John Roberts joining the court’s liberal bloc.

With Barrett on the court – while it is impossible to predict how any judge will rule – it potentially does not matter whether Roberts joins the liberal bloc; the conservatives still win.

3) How could/did this happen?

Justice Ruth Bader Ginsburg’s death in September created a vacancy on the court that Trump and Republicans have rushed to fill, in a hypocritical reversal of their earlier refusal, when Barack Obama was president, to consider a supreme court nominee in an election year. At the time Republicans lectured others about the importance of letting the American people decide at the ballot box about who should get to appoint the next justice.

Unlike Trump’s two prior supreme court nominations, who replaced justices aligned with the court’s conservative bloc, Barrett would replace Ginsburg, a justice strongly aligned with the liberal bloc, effectively “flipping” the seat. A tenuous 5-4 conservative majority – tenuous because conservatives, with some evidence, view Roberts as unreliable – would become a rock-solid 6-3 conservative majority, which could, for example, uphold state laws making it harder for people of color to vote.

4) Can Democrats fight it?

In response to what they consider a hijacking of the supreme court by Republicans, some Democrats have said a future Congress controlled by Democrats – which could arrive as early as next year – should add seats to the court, or impose terms limits on justices, which could be done through the relatively simple passage of a law (as opposed to a constitutional amendment).

Others caution against such moves, envisioning future Republican retaliation, and a kind of court-packing arms race that could undermine the legitimacy of the court. But many legal analysts see that legitimacy as already exploded by the Republicans’ willingness to ram their nominee through during a presidential election.

The fact is that an increasing number of Americans could come to see the court as an overtly political body, bent not on delivering justice but on protecting the political, economic and social interests of its conservative sponsors.

5) What about future turnover on the court?

Any future court retirements could hinge on the results of the November election. Liberal justice Stephen Breyer is 82, and the conservative bloc counts two septuagenarian justices. The other five sitting justices are in their 50s and 60s. Barrett is 48.

6) Is there anything else to be done?

The influence over American public life by the nine justices who sit on the supreme court has always been profound. It includes rulings that upheld and then struck down racial segregation, upheld and then partially vacated voting rights protections, established a woman’s right to choose and to receive equal pay for equal work, established marriage equality and banned employment discrimination on the basis of sexuality and gender identity.

This influence can be balanced by Congress. The more assertive Congress is in passing laws to expand rights and extend protections, the more rigidly confined the court is in its work.

The supreme court has been such an intense subject of focus in recent years in part because extreme partisanship has led to congressional paralysis. If that changes – if Congress returns to legislating, for example by passing laws to protect voting rights or reproductive rights – the influence of the court could, for a time, recede.