The Supreme Court is looming as a roadblock for Democrats as they plot an ambitious wish list if they gain control of the White House and Congress for the first time in a decade.
Judge Amy Coney Barrett’s ascension to the Supreme Court, which Republicans hope to finalize this month, would lock in a conservative majority likely for decades, setting the courts up as a potential foil for Democratic presidential nominee Joe Biden’s agenda and Democratic leadership in the House and Senate.
The result of a 6-3 court, Democrats warn, could lead to the justices striking down a host of top priorities for the party, including health care, voting rights legislation or enacting stricter background checks for gun purchases.
“It would be a constant headache,” said Sen. Dick Durbin (D-Ill.). “It’s just a court that is lopsided. It’s not balanced and a lot of things that Joe Biden values, and I value, will be at risk.”
Sen. Chris Murphy (D-Conn.) predicted that the court, if Trump’s nominee is confirmed, would “be a radical court.”
“A 6-3 court with Coney Barrett is likely to be absolutest on the second amendment … so much of Biden’s agenda is going to be compromised by a radical right-wing court that fundamentally believes in the illegitimacy of government to do anything,” he said.
Republicans appear poised to confirm Barrett before the Nov. 3 election, though the fallout from President Trump’s coronavirus diagnosis and two GOP members of the Judiciary Committee, Sens. Mike Lee (R-Utah) and Thom Tillis (R-N.C.), testing positive has thrown a dose of uncertainty into what was shaping up to be an otherwise anticlimactic fight.
Barrett, if she’s confirmed, would be the sixth Republican-appointed justice on the court. Her succession of the late Justice Ruth Bader Ginsburg would mark the biggest ideological swing between a justice and their predecessor since 1991 when Clarence Thomas replaced Thurgood Marshall and the third, overall, in modern history, according to FiveThirtyEight.
Democrats are feeling bullish about their chances of Biden winning the White House and netting a total of three seats needed to take back the Senate. If they do, they’ve promised a long list of legislative items including election and ethics reform, infrastructure, voting rights, LGBT equality, immigration reforms, climate change and expanding gun background checks.
But their headaches with the judicial branch could start almost right out of the gate. The Supreme Court is hearing several high-profile cases this term, which would be handed down next spring or early summer including a voting rights case out of Arizona, the adoption rights of LGBT couples, the scope of federal housing authority and a fight over Democratic House members’ access to grand jury materials from former special counsel Robert Mueller’s probe.
At the top of that list is a case, set to be heard a week after Election Day, that could decide the fate of the Affordable Care Act. If the court strikes down the entire law, something some experts remain skeptical of even with Barrett on the bench, it would drop an explosive healthcare fight into the lap of a Biden administration and Democratic majority just as they are trying to get off the ground.
“A vote to confirm judge Amy Coney Barrett is a vote to terminate health care coverage and protections for hundreds of millions of Americans during a global pandemic nonetheless,” Senate Minority Leader Charles Schumer (D-N.Y.) told reporters.
Asked if a 6-3 court could make it harder to get a public option or replace ObamaCare, if it is struck down, Murphy predicted the Supreme Court would view itself as an “equal legislative body to Congress so there’s no telling where their activism will stop.”
It isn’t just the Supreme Court that could create headaches for Democrats if they take back power starting in January. Republicans have worked at a near record-setting pace to place President Trump’s judicial nominees at both the district and appeals court levels, leaving behind a legacy of younger, conservative judges.
As of January, 28 percent of all appeals court judges were nominated by Trump and 21 percent of all judges, according to a report from the left-leaning Brookings Institution.
Republicans, under Trump, have also flipped the balance of the 2nd, 3rd and 11th Circuit courts, while increasing the number of Republican-nominated judges on the 4th, 5th, 6th, 7th, 8th and 9th, according to data from the Article III Project, a Republican outside group supportive of the president’s picks.
It won’t be just items on Biden’s agenda that could be for grabs. Conservatives have long aimed at reining in the Chevron doctrine, which has been used to uphold federal regulations. Democrats worry that Barrett could help curb Roe v. Wade or upend areas like worker rights.
Sen. Richard Blumenthal (D-Conn.), another member of the Judiciary Committee, added that it could “shift the intellectual gravity way to the right.”
“There’s no telling how far right it would go, in striking down public safety measures that prevent gun violence or guaranteed reproductive rights or worker organizing and safety. It could portend a very dramatic and historic shift to the right in direct contradiction of the majority of American people,” Blumenthal added.
The fear about the potential fallout of a 6-3 court has led some outside activists and progressive lawmakers to call for nixing the legislative filibuster and expanding the Supreme Court next year to counteract the seats “stolen” by Trump and Senate Majority Leader Mitch McConnell (R-Ky.)
But several members of the Democratic caucus have tamped down, if not outright dismissed, suggestions that they add seats to the court, arguing it provides a talking point for Republicans in the final stretch of the election.
Biden sidestepped a question about nixing the filibuster to expand the courts during the first presidential debate against Trump, saying “whatever position I take in that, that’ll become the issue.”
And Schumer has been careful to not rule anything in, or out, when it comes to getting rid of the filibuster.
“As I’ve said before, we first have to elect a majority,” he told reporters during a recent press conference. “If we don’t elect a majority, we won’t even be discussing it. But if we do elect a majority, we’ll all get together and everything will be on the table. Nothing will be off the table.”