ACB And The Case For Reconstructing The Courts

This week has been the ultimate illustration of why Democrats need to radically reconstruct our federal judiciary if they finally get control of the White House and Congress. Between the illegitimate hearings to ram the extremist Amy Coney Barrett onto the Supreme Court to the ridiculous decisions in the Fifth Circuit and Supreme Court involving voting rights and the census, it is becoming clear that the current federal judiciary, like the Republican party that largely packed it, has no interest in upholding or even defending democracy.

Barrett is an incredibly thinly qualified Supreme Court nominee, with her only actual judicial experience being three years on the 7th Circuit Court of appeals, a spot she only received because Mitch McConnell blocked Obama’s nominee for that position for over a year. While on the 7th Circuit, Barrett authored an opinion that contained such serious legal errors that it not only “threatened to hurl corporate insurance policies into chaos” but also entirely ignored the governing Indiana state law. The decision was so out of step with the law that Barrett was forced to take the almost unheard of step of withdrawing the opinion and then concurred without explanation with the lower court ruling that she had originally overturned. There is some speculation that Barrett’s egregious decision was influenced by her belief in “textualism”, hinging her entire decision on the words “as reported” contained in the insurance policy in question.

Barrett’s unpreparedness, either due to her inexperience or the rushed nature of the proceedings, became apparent in some of the questioning by Democrats on Tuesday, even as she tried to avoid answering as many questions as possible. Both Coons and Harris got Barrett to say that she believed the outstanding question about the constitutionality of the ACA revolves around the issue of severability, namely whether one unconstitutional piece of a law renders the entire law unconstitutional. But Barrett’s answer focusing solely on severability indicated that she had already made up her mind about the two constitutional issues that need to be resolved before you can even get to severability, whether the plaintiffs even have standing because they actually have suffered no harm in not having to pay the individual mandate and then whether the mandate itself is unconstitutional. And today, she even refused to answer whether Medicare is constitutional. That kind of gives the game away regarding what she would decide regarding the ACA.

Similarly, in response to questions from Senator Booker, Barrett seemed to believe that the 1964 Civil Rights Act only protects race and gender discrimination. But this year, in a 6–3 decision, the Court declared that the law also protected LBGTQ people from discrimination as well. The idea that Barrett either did not know that or considers that decision as something that should not represent now settled law is, as Susan Collins would say, troubling.

Of course, Barrett’s real qualifications for the Supreme Court are that she will repeal Roe v. Wade and the ACA, or at least gut them to the point of irrelevancy. She will join Roberts in refusing to defend civil and voting rights while expanding corporate power and limiting the government’s power to regulate. Barrett’s stated view that a fertilized egg is a life that must be protected means the end of Roe v. Wade and abortion in general but also the end of IVF and medical research that helped produce the drug Trump was given for Covid. That was why Barrett refused to answer whether IVF was manslaughter yesterday. Barrett’s view also brings into question the legality of birth control, which also makes her refusal to engage with Senator Kennedy over the seminal right to privacy case of Griswold v. Connecticut in her conformation hearings in 2017 even more relevant.

Barrett is a strong proponent of “originalism”, a theory that Daniel Nexon aptly describes as “legal theology”. Barrett admits that under that theory the 14th Amendment which guarantees all citizens equal protection of the law is “possibly illegitimate” and that even Brown v. Board of Education may be incorrectly decided, although she admits that “You’d have to be crazy to try and overturn it” at this point. Of course, her originalism also manages to be selective, prioritizing the right of felons to own a gun over the right of felons being allowed to vote. To do so requires Barrett to totally ignore the phrase “A well regulated Militia, being necessary to the security of a free State” in the 2nd Amendment as well as ignoring the right to vote enshrined in the 15th, 19th, and 26th Amendments.

Barrett’s faith in both “originalism” and “textualism” is now standard Republican legal thought. But, as Richard Posner points out, “A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text. Ignoring the limitations of foresight, and also the fact that a statute is a collective product that often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers, the textual originalist demands that the legislature think through myriad hypothetical scenarios and provide for all of them explicitly rather than rely on courts to be sensible. In this way, textualism hobbles legislation-and thereby tilts toward ‘small government’ and away from ‘big government’, which in modern America is a conservative preference”. Originalism works in much the same way.

If all this wasn’t bad enough, it was Barrett’s refusal to even acknowledge to core foundations of our democracy as constitutional that was most disturbing. She refused to say whether the President could unilaterally postpone the election. She refused to say whether presidents should commit to the peaceful transition of power. She said she was not aware of any statistics that showed that there was racial bias in the criminal justice system. She refused to answer the basic question from Amy Klobuchar about what federal laws prohibit voter intimidation. Today, she refused to say whether a person’s vote could be denied simply because of their race. She refused to say whether a president should be allowed to pardon himself. And she refused to recuse herself from cases involving Trump and the election, stating instead that she would follow the rules on recusing herself while knowing full well that those rules do not apply to a sitting Supreme Court justice. While the media analysis seems to think these hearings were an enormous waste of time because the Republicans are going to confirm her no matter what, Barrett’s refusal to even acknowledge some of these core tenets of our democracy as legitimate should frighten us all.

Of course, it is hardly surprising that another Federalist Society hack would refuse to actually defend our democracy when they are more intent on ensuring that Republicans maintain minority rule. To that end, the notoriously bad 5th Circuit, the circuit where the incredibly weak ACA case arose, overruled a lower court ruling that required Texas to supply more than one ballot dropbox per county. Incredibly, the Court declared Governor Greg Abbott’s limitation of one dropbox per county “abridges no one’s right to vote”. Accordingly, Harris County, heavily Democratic, will just have one dropbox for 4.7 million voters spread over 1,700 square miles, the same number as tiny Loving County with a population of less than 150 people covering 677 square miles. I’m old enough to remember when the Supreme Court handed Bush the presidency in 2000 based on the concept of equal protection. That clearly no longer applies and apparently neither does Texas state law or the US Constitution. As the dissenting opinion clearly notes, “Under the Constitution, it is the state legislature — not the governor or federal judges — that is authorized to establish the rules that govern the election of each state’s Presidential electors, U.S. Senators, and U.S. Representatives. But apparently that is not how federal elections will be administered in Texas this year.”

Finally, the US Supreme Court issued another emergency stay yesterday, this time granting the administration’s request to allow the administration to end the census count early. That decision effectively means that there will probably be a massive undercount of the American population, not only affecting the congressional redistricting but also the allocation of federal dollars for the next decade. As Justice Sotomayor pointed out in her dissent, the government asked for the emergency stay because it needed to stop counting now in order to meet its December 31 statutory deadline for reporting the results. But the government has repeatedly told the lower courts it will be unable to meet that deadline anyway.

The real reason for the rush to complete the census and report it to the President before the end of the year is the fear that Trump will lose re-election. By reporting clearly incomplete totals to Trump, it allows Trump to follow through on his stated plan to exclude undocumented immigrants from the census totals he reports to Congress for purposes of redistricting. As the plaintiffs in the original case have noted, not only would ending the census early result in an inaccurate count but it would also “facilitate another illegal act: suppressing the political power of communities of color by excluding undocumented people from the final apportionment count”.

It is important to understand just how unusual it is for the Court to grant these emergency stays. In the first 16 years of this decade, there were only eight requests from an administration for an emergency stay from the Supreme Court. Under the Trump presidency, there have now been 36 requests with the vast majority of them granted by the Court. It is what Steve Vladeck calls the Court’s “shadow docket” where increasingly important decisions are effectively made. As Vladeck notes, these decisions “consists almost entirely of summary orders, usually only one sentence long. These orders tend to be based on far less participation from lawyers, far less briefing, and no oral argument. And, in almost every case, they offer virtually no insight into the justices’ reasoning-unless some of them choose to write separately to explain their concurrence or dissent. Indeed, unlike merits cases, we usually don’t even know how the justices voted on the shadow docket-unless four justices publicly note their dissent”. And with a 6–3 conservative majority, the justices positions on these shadow cases will be even more obscure. Moreover, the increased use of the shadow docket shows that the Court as currently constructed is unable to handle the caseload required for today’s world.

Assuming Barrett is confirmed, five of the nine judges on the Supreme Court will have been appointed by a Republican president who had originally lost the popular vote. Three earned their conservative bona fides in the Bush v Gore legal case. At least half of the six conservative justices will have been confirmed by a Senate that represented a clear minority of Americans. Add to all that the treatment of Merrick Garland and now the rush to seat Barrett and it’s easy to see why the courts, particularly the Supreme Court is losing its legitimacy. More importantly, as both Barrett’s testimony and the courts’ recent decisions involving voting rights and now the census have made clear, the judicial system has become an anti-democratic branch of our government, seemingly intent on perpetuating minority rule. With their expanded use of the shadow docket, the Court is becoming a star chamber, providing no rationales for its decisions made in secret votes.

It is especially challenging when the judicial branch becomes anti-democratic and anti-majoritarian simply because the other two branches are the ones that already suffer from the anti-democratic and anti-majoritarian structural issues of the US Senate and the Electoral College. But the only hope of restoring a judicial system that will defend our democracy comes through making the necessary changes that can only be done through the democratic instrument of those other two branches. That is why it is incumbent on Democrats to restructure our judicial system if they win the White House and control Congress next year. How that restructuring should look is the subject of a future post.

Originally published at on October 14, 2020.

Thoughtful discussions on politics and economics with some sidelights in photography and astronomy.

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