THE CONTINUING COURT-PACK SAGA

In unprecedented haste to confirm a nominee, Mitch McConnell will convene the Senate over this weekend to prepare to confirm Amy Coney Barrett on Monday, October 26. The Republicans have a 53–47 majority in the Senate and the smart money bet is that the confirmation vote will be 52-48 (because McConnell will help out Susan Collins in her close race in Maine by giving her leave to vote “No,” after first assuring he doesn’t need her vote.) That, of course, tells you much about Republican political power and nothing about the merits of confirming Amy Coney Barrett.

All of which points to the importance of examining the consequences of creating a 6-3 conservative majority, and what to do about it. In my blog post of October 16, I wrote about the absolute need for a Biden presidency  (assuming a Democratic Senate majority) to promptly add four Justices to the Court. 

Recent events point up the headline status of the court pack issue:

First, to respond to criticism that he was dodging a yes-no answer to questions about his views on the subject, Biden promised a clear statement of his position before election day.

Second, five days after I submitted my piece on the court-pack issue to the New York Times, that paper ran a piece on the subject by Harvard Law professor Charles Fried, who had been Solicitor General under President Ronald Reagan. 

(What, the NYTimes believes the former the Solicitor General outranks moi? No wonder Trump calls em the enemy of the people!)

Fried opined that the impending 6-3 conservative majority (all 6 are Republican appointees) was "poised to take a constitutional wrecking ball to generations of Supreme Court doctrine… .”

While Fried erred in his recitation of the history of FDR's failed court pack plan, (he clearly did not read my October 16 post!) the conservative professor recognized the need for a Court enlargement. But he believed the Dems should do so only after the new president gave the right-wing Justices enough rope so that even liberal doubters would overcome their fear of the Court being seen as a "partisan political institution.” ( Duh, how much more evidence does any sentient person need on that subject?)

For what it's worth, I wrote the professor informing him of his historical errors about the reasons for the failure of the FDR court pack effort in 1937, and the overwhelming evidence, as I saw it, that the politicization of the Court was already a done deal. I urged prompt, not delayed, action. Fried responded that my comments were “wise and interesting.”

Harrumpf. It would appear that the Biden team pays more attention to Fried than to London. Imagine that! Fried’s “give em enough rope” plan was the centerpiece Biden’s proposed 180-day Study Commission announced a couple of days ago.

Putting aside the issue of when, the substantive question is whether all this fear is justified. Is Barrett really as conservative as anticipated? Might she really vote to reverse important liberty precedents handed down by the Court in the last 100 years?

As Joe would say, "Here's the deal:”

Barrett’s judicial philosophy was clearly enunciated in a 2013 piece she wrote for the Texas Law Journal. She unambiguously asserted that textualists and originalists (like she) are free to ignore precedents with which they disagree:

“It is more legitimate for a Justice to enforce her best understanding of the Constitution rather than [enforce] a precedent she finds clearly in conflict with it.”

And,

“Stare decisis is not a hard-and-fast rule in the Court’s constitutional cases and the Court has not been afraid to exercise its prerogative to overrule precedent.”

I have always believed the so-called textualist and originalist approach to constitutional interpretation is a sham. It's a cover for conservative Justices to make conservative political decisions. An honest application of the “textualist/originalist" philosophy (i.e., look to the exact meanings of what the Founders wrote when they wrote it) would today produce politically unacceptable results. For the sake of brevity, I offer but two obvious proofs:

1.The application of textualism and originalism would require reversal of the Court’s 1954 decision in Brown v Board of Education. One could not possibly argue that the writers of the 14th Amendment, ratified in 1868, used words intending to outlaw “separate but equal” school segregation. Originalism would therefore dictate that communities that wished to re-segregate public schools could do so at will. 

2. Indeed, even more basically, application of the originalist doctrine would negate the right and power of the Supreme Court to invalidate legislation on the ground it is “unconstitutional.” There is no text in the original Founding document that sanctions such power. Therefore the famous Marbury v Madison precedent would be overruled by any honest textualist/originalist Justice.

So how does the clutch of so-called textualist/originalist scholars and jurists defend their failure to reject those precedents?

They do it by manufacturing, out of whole cloth, the notion of “superprecedents.”  If you think that sounds like something out of a law book published by Marvel Comics, you are not alone.

According to Amy Coney Barrett, a superprecedent is a decision that is beyond inquiry into its correctness. In other words we don't even ask if it passes the originalist test, because no one would want to challenge the ruling.  Not the Justices, not the politicians, not the scholars. That's not to say the decision was correct. No originalist could honestly say Brown v Board of Education was correctly decided. 

The superprecedent invention is basically a juridical variation of "Don't ask, Don't tell.”

In her Law Review article, Barrett lists seven historic superprecedents. Only seven. 

They are:

1. Court power to strike down legislation (Marbury)
2. Elimination of school segregation (Brown)
3. The Bill of Rights applies to the states
4. The 1937 cases reversing earlier decisions striking down New Deal legislation
5. The Supreme Court has right to review state decisions
6. The Social Security Act is constitutional
7. Federal legislation approving paper money is constitutional.

Everything else is subject to the Coney Barrett rule quoted above; i.e., it is more appropriate for a Justice to decide a constitutional question on the basis of her own view of the Constitution, rather than on the basis of Court precedent.  In other words, all “non-super” precedents really don’t count for much, if for anything at all.

So what are some of the recent Court decisions that have NOT attained Barrett’s superprecedent status and are therefore subject to her reconsideration? They include, for example, Court decisions establishing the legality of:

1. Reproductive choice (Roe v Wade)
2. Decriminalization of contraception (Griswold)
3. Suspect’s rights (Miranda)
4. Free speech protections (Times v Sullivan)
5. Inter-racial marriage (Loving)
6. Consensual homosexual activity (Lawrence)
7. Same-sex marriage (Obergefell)
8. Gender equality ( Windsor, and the RBG-argued cases)
9. Lots more.

As I have said before, if your hair is not on fire now, it should be!

Conclusions:

1. Barrett will obviously be confirmed.

2. The 6-3 conservative Court majority cannot be tolerated.

3. The only safe fix is enlarging the Court. Biden has chosen a “give-em-rope” 180-day timetable. Let’s hope he sticks to that deadline and then Schumer and Pelosi make sure it happens promptly thereafter.

A bientôt.

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