Today’s political chatter was just bizarre. The talking point on the Sunday talk shows, pushed hard by Republicans and enabled by the media, was that Democratic presidential nominee Joe Biden needs to explain his stance on “court-packing,” that is, adding more justices to the Supreme Court. Some Democrats have begun to talk about that outcome if the Republicans ram through Amy Coney Barrett in these last few days before the election.
This is bizarre first of all because the Republican Party did not even bother to write a platform this year to explain any policies at all for another Trump term, and Trump has been unable to articulate any plans for the future, while the idea of “court-packing” is a future hypothetical, dependent on what today’s Republican Senate does.
It’s bizarre because Trump is egging on his followers to violence—just today he urged supporters to “FIGHT FOR PRESIDENT TRUMP.” He is so misrepresenting the reality of the coronavirus pandemic that today Twitter tagged one of his tweets as a violation of Twitter rules and Dr. Anthony Fauci publicly objected to the Trump campaign’s misrepresentation of his statements about Trump’s handling of the pandemic. The campaign quoted Fauci out of context and without his permission, but campaign spokesperson Tim Murtaugh dismissed Fauci’s complaint, saying that they were indeed Fauci’s words, and Trump agreed. The New York Times has also continued its coverage of Trump’s taxes, showing him to be deep in what amounts to a pay-to-play scandal, in which he has essentially turned the U.S. government over to the highest bidder, revealing himself to be the most corrupt president in U.S. history.
And yet, today the chair of the Republican National Committee, Ronna McDaniel, told Margaret Brennan on CBS’s “Face The Nation” that she would not talk about Trump’s financial scandals because “You have a Democrat running on the biggest power grab – the absolute biggest power grab in the history of our country and reshaping the United States of America and not answering the question. That’s all we should be talking about.” The media seems to be taking this distracting bait.
What makes this so especially bizarre is that it is Republicans, not Democrats, who have made the courts the centerpiece of their agenda and have packed them with judges who adhere to an extremist ideology. Since the Nixon administration began in 1969, Democrats have appointed just 4 Supreme Court justices, while Republicans have appointed 15.
The drive to push the court to the right has led Republicans under Senate Majority Leader Mitch McConnell to take the unprecedented step of refusing to hold a hearing for Barack Obama’s nominee for the Supreme Court, the moderate Merrick Garland, on the grounds that it was wrong to appoint a Supreme Court justice during an election year. There have been 14 justices confirmed during election years in the past, but none has ever been confirmed after July before an election.
Obama nominated Garland in March 2016, but now, in October, McConnell is ramming through Trump’s nominee Amy Coney Barrett.
Americans are worried that the increasingly conservative cast to the court does not represent the country. Four, and now possibly five, of the current justices were appointed by presidents who lost the popular vote, and have been confirmed by senators who represent a minority of the American people: Justice Brett Kavanaugh’s Senate support represented just 44% of the country.
So there is talk of increasing the size of the Supreme Court. This is legal. The Constitution does not specify the size of the court, and it has changed throughout our history. But the current number of justices—9— has been around for a long time. It was established in 1869. Nonetheless, in 2016, when it looked like Hillary Clinton was going to win the presidency, Republicans announced that they would not fill any Supreme Court seats during her term, and if that meant they had to reduce the size of the Supreme Court, they were willing.
Instead, with Trump in the White House, the Republican Senate has pushed through judges at all levels as quickly as it possibly can.
This is no accident. Since Nixon, Republicans have made control of the nation’s courts central to their agenda. But while most voters tend to get distracted by the hot-button issues of abortion or gay rights, what Republican Supreme Courts have done is to consolidate the power of corporations.
In 1971, a corporate lawyer for the tobacco industry, Lewis Powell, wrote a confidential memo for the U.S. Chamber of Commerce warning that corporate America needed to work harder to defend what he called “free enterprise.” Angry that activists like Ralph Nader had forced safety regulations onto automobile manufacturers and the tobacco industry, he believed that businessmen were losing their right to run their businesses however they wished. Any attack on “the enterprise system,” he wrote, was “a threat to individual freedom.”
Powell believed that business interests needed to advance their principles “aggressively” in universities, the media, religion, politics… and the courts. “The judiciary,” he wrote, “may be the most important instrument for social, economic and political change.” He wrote that “left” institutions like the American Civil Liberties Union (ACLU), labor unions, and civil rights activists were winning cases that hurt business. “It is time for American business—which has demonstrated the greatest capacity in all history to produce and to influence consumer decisions—to apply its great talents vigorously to the preservation of the system itself.”
The following year, Nixon appointed Powell to the Supreme Court. During his tenure in office, Nixon would appoint three more justices. Nixon’s successor, Gerald Ford, would appoint another.
Democratic President Jimmy Carter, who followed Ford, appointed none.
Under President Ronald Reagan, cementing the interests of business in the Supreme Court would become paramount. Reagan’s Attorney General, Edwin Meese, deliberately politicized the Department of Justice in an attempt, as he said, to “institutionalize the Reagan revolution so it can’t be set aside no matter what happens in future elections.” Reagan made 4 appointments to the Supreme Court.
During Reagan’s term, lawyers eager to push back on the judicial decisions of the post-WWII Supreme Court that had expanded civil rights and the rights of workers began to organize. They wanted to replace the current judges with ones who believed in “originalism” and who would thus cut regulations and expanded civil rights.
In 1982, law students at Yale, Harvard, and the University of Chicago organized the Federalist Society for Law and Public Policy Studies to advance a legal ideology that opposed what they believed was “judicial activism.” Judges who expanded rights through their interpretation of the laws were “legislating from the bench,” they believed, intruding on the rights of the legislative branch of the government.
By the time of President George W. Bush, the Federalist Society was enormously influential. Members of the society made up about half of his judicial appointments. The society also urged Bush to stop letting the American Bar Association rate judicial nominees, believing the ABA was too “liberal” and therefore rated conservative judges more harshly than others.
During the Obama administration, justices who were associated with the Federalist Society were deciding votes for the 2010 Citizens United decision permitting businesses unlimited contributions to political campaigns and the 2013 Shelby v. Holder decision gutting the 1965 Voting Rights Act.
Under Trump, its power has grown even greater. Five of the 8 current members of the Supreme Court—Samuel Alito, John Roberts, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh—and now Supreme Court nominee Amy Barrett, are members of the Federalist Society.
While Republicans desperately want to make the Barrett nomination about her religion, the reality is that the members of the Supreme Court who are wedded to an originalist interpretation of the document threaten far more than reproductive rights. Among other things, the court is taking up the Affordable Care Act just a week after the election.
Most Americans believe that the Barrett nomination should wait until after the election, but a key Republican constituency is demanding it. Americans for Prosperity, a pro-business group backed by billionaire Charles Koch, has launched a campaign on her behalf. It aims to mobilize voters to pressure senators who might otherwise try to avoid a confirmation at such a time. AFP also launched fights for Neil Gorsuch and Brett Kavanaugh.