Supreme Court Justice Ruth Bader Ginsburg is gone, and she has left behind, along with her legacy as a feminist icon and a progressive thinker, a storm of liberal panic. President Donald Trump announced his intention to replace Ginsburg with Judge Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals, and Democrats have begun to sweat. Barrett is a conservative judge who has said she is inspired by the late Justice Antonin Scalia’s legal philosophy, and when she is appointed, the Supreme Court will tip decidedly to the right.
So exactly how worried should liberal Americans be about the future of the Supreme Court and, by extension, our democracy? It depends on who you ask. In a recent Washington Post opinion piece, Michael W. McConnell argues that the hysteria over Barrett’s nomination is largely unwarranted.
“Americans have enough divisive matters to worry about — not least a potentially contested presidential election — without being driven crazy over a Supreme Court appointment,” McConnell writes. “A little calm is in order.”
McConnell assures readers that Barrett will not transform the court. He does not believe her appointment will end the right to abortion nor topple the Affordable Care Act. This situation, argues McConnell, “is not sufficient reason to tear the country apart.”
Frankly, that feels extremely short-sighted. No, our democracy won’t crumble under the weight of one Supreme Court appointment. It would be difficult to find a large number of liberals who truly believe that Barrett will destroy everything they hold dear on her first day on the bench. But while our cherished democracy cannot be destroyed with a single blow, it is certainly liable to erode over time. Fretting over the possible implications of a majority-conservative Supreme Court is exhausting and unpleasant, but that does not mean it is not necessary.
First, it is time for Americans to admit something we do not like to acknowledge: the Supreme Court is a political entity. It is not an impartial body. Supreme Court justices, whether liberal or conservative, have personal biases and political and religious beliefs that do impact how they interpret laws. These biases may not always be obvious, and the justices may sometimes be able to constrain them, but they exist and they matter. If they did not, Republicans leaders would not take such pains to nominate a conservative justice before an election that might upend their power in the Senate and the White House, and Democrats would not be so anxious about becoming an even smaller ideological minority on the bench.
Reacting to Barrett’s nomination by reassuring ourselves that her personal beliefs on abortion and other social issues do not affect how she interprets the law is just delusional. This happens every time a new justice is nominated. People worry about the political ramifications of the appointment, and then others accuse these worriers of not understanding the true function of the Court. “The Supreme Court just interprets the laws,” they say. “You’re being dramatic.”
But the Supreme Court has gained a significant amount of power since it was founded. Starting in the late 19th century, Congress increasingly granted the Court more authority by expanding its jurisdiction to civil suits that relate to the Constitution and affording it the power of certiorari (the ability to determine its own docket each term). It is also now routine for politicians to leave hotly debated issues up to the Court. The Supreme Court, for example, decided the outcome of the 2000 presidential election in Bush v. Gore, and in a key part of that decision, justices were split down ideological lines. This election cycle might provide another opportunity for the Court to weigh in on the outcome of a presidential election.
With the coronavirus leading more Americans to vote by mail and concerns that this increase in mail-in ballots will lead to fraudulent elections–concerns fueled in large part by President Trump–there is certainly a possibility that another contentious Bush v. Gore situation will arise. Trump has said publicly that he wants to ensure there are nine justices on the Court if this happens. Barrett, who would likely be in her first days on the bench if a case concerning the election reaches the Court, has already indicated that she would not recuse herself from the decision. If the idea of a Supreme Court justice newly appointed by Trump weighing in on a decision over whether he maintains control of the executive branch doesn’t make you uncomfortable, it should.
One of the first cases the Supreme Court will hear this term concerns the latest challenge to the Affordable Care Act, better known as Obamacare. In 2017, Barrett criticized an opinion by Chief Justice John Roberts that upheld Obamacare as having gone “beyond its plausible meaning to uphold the statute.” While it is unlikely that she will admit an intention to dismantle the ACA during the nomination process (nominees typically go out of their way to avoid admitting political beliefs of any kind), there is sufficient reason to believe that she will side against the program.
Speaker of the House Nancy Pelosi, at least, is not optimistic about the future of Obamacare. “This nomination threatens the destruction of lifesaving protections for 135 million Americans with pre-existing conditions together with every other benefit and protection of the Affordable Care Act,” she said in a statement. Millions of Americans rely on the ACA to provide them with health coverage. For them, the Supreme Court’s decision will be more than political. In the middle of a pandemic, it might mean life or death.
McConnell’s argument that this entire situation does not warrant serious concern ignores the reality that many Americans do not have the luxury of remaining calm. The wealthy and the privileged are largely able to ignore the Court (even if they shouldn’t). They will always have good healthcare, always have the means to receive contraception and abortions. Barrett’s appointment and the subsequent tilt to the right that the Supreme Court will experience may not ever affect their daily lives. But for the poor, marginalized Americans who experience systemic racism, sexism, and discrimination, the politics of the Supreme Court are not abstract. They have every right to panic, to worry over what the dominant ideology of the Court will mean for their families. Don’t make them feel unreasonable for doing so.
