Walt Amses: Disorder in the court

Editor’s note: This commentary is by Walt Amses, a writer who lives in North Calais.

The last several weeks have seen an uptick in Republican accusations that a Joe Biden presidency would be an invitation to “court packing,” including expanding the Supreme Court in order to counterbalance the GOP’s years of stonewalling Barack Obama’s judicial appointments while accelerating those of Donald Trump. Although the major focus is on the impending SCOTUS confirmation of Amy Coney Barrett, the president’s third justice pick in his first term, the rightward tilt of the overall judiciary is what should be most alarming.

With Senate Majority Leader Mitch McConnell insuring over 200 vacancies by simply refusing to move on Obama’s appointments, Trump has seated 217 judges since he took office, nearly a third of the entire federal judiciary. His assumption that these judges fulfill the president’s highest priority — loyalty to him — is already paying off. After a federal court struck down Texas Gov. Greg Abbott’s limiting mail-in ballot drop boxes to one per county last week, on Monday, an appeals court, with all three members appointed by Trump, reversed that decision, ensuring it will be far more difficult to cast a ballot in the Lone Star State. 

What the Republican Party and their standard bearer want from the Supreme Court is clearly obvious, both immediately — rubber stamping Donald Trump’s reelection bid by any means necessary — and in the longer run, bolstering conservative priorities at the expense of all else and deciding in favor of every piece of litigation initiated by the GOP, beginning with their likely assertion in three weeks that every national and state election they lose is somehow illegitimate.  

This will not only embroil the country in perhaps months of uncertainty, but force feed us a period of unbridled turbulence at a time when we’re most vulnerable, needing stability more than anything. With each day getting darker and colder, the pandemic raging into a second wave and Americans sinking into despair, imagine the possible Election Day scenarios. Most pundits feel that the most likely outcome will be a close vote with Trump claiming premature victory in a contest too close to call on election night, subsequently calling the accurate vote count “rigged,” relying on his SCOTUS appointments to rubber stamp a second term.

However difficult such partisan judicial intervention is to comprehend, consider this: In a decision that largely flew under the radar a couple of weeks ago, the court unanimously refused to hear the appeal of former Kentucky county clerk Kim Davis, who would not issue marriage licenses to gay couples citing her religious beliefs. Although there were no dissenting opinions, Justices Samuel Alito and Clarence Thomas took the highly irregular step of issuing a voluntary “statement” that essentially opens the door for overturning the Obergefell v. Hodges decision that legalized gay marriage five years ago.

Thomas wrote that the Davis decision “provides a stark reminder of the consequences of Obergefell,” suggesting that the legalization of gay marriage chose a “novel” constitutional right over religious liberty which is “explicitly protected in the first amendment.” He goes on to say that the court created this problem and only the court can solve it, a not too subtle intimation that with Barrett’s confirmation, the court would be willing to move us one step closer to an evangelical theocracy. 

While polls may look good right now for a return to normalcy, the influence of Trump’s three Supreme Court appointments will be felt for decades, creating the most conservative judiciary in memory, and one that is almost certain to be out of step with the majority of Americans. An increasing number of us — 60% in 2019 — favor tougher gun laws; a September Gallup poll found that 80% favor legal abortion in some degree and a majority do not want to see Roe v. Wade overturned; and a record number — two out of three — support gay marriage.  

For several years it has become abundantly clear that the Republican Party has mutated into slavish fealty to their big donors while cultivating a loyal base centered on evangelical Christians, evangelical gun owners; and evangelical bigots. Their problem is that this constituency is insufficient to guarantee the GOP goal of a permanent majority, so they resort to nefarious means: voter suppression, stealing a Supreme Court seat or court-packing with the intention of litigating almost everything — including this election.  

Democrats, without recourse, participate in the largely ceremonial process that will inevitably land Barrett on the high court. But, should the political landscape dramatically shift on Nov. 3 with the Democrats retaking the Senate and the White House, an opportunity to reverse some of the damage will arise. Many on the left are advocating exactly what the Republicans fear: killing the filibuster and expanding both SCOTUS and even the federal judiciary to restore a semblance of equilibrium in the courts. Whether it happens remains to be seen but Minority Leader Chuck Shumer has said, should the GOP fill Ruth Bader Ginsburg’s seat, “nothing is off the table.”

In an Atlantic interview, Aaron Belkin, a political science professor at San Francisco State University and founder of the group Take Back the Court, advocates such retaliation because he believes the court “has already been stolen.” He thought this would be the safest way “to protect democracy” and to “de-radicalize the Republican Party,” which he describes as “Completely unmoored from facts and reality.” Reminded that such a move would be so controversial that even some Democrats are not yet on board, Belkin was adamantly clear.  

He explained that should the Democrats prevail in the 2020 election and fail to do these things, although they may win future elections, they will not be allowed to actually govern because of GOP obstruction and stolen courts. “Democracy would effectively be over.”


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