Supreme Court not immune to partisanship

“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” the newest Supreme Court justice, Amy Coney Barrett, said Sunday. Good luck with that. When the court’s hard-right majority stops acting like partisan hacks, maybe we’ll believe her.

Barrett was speaking in Louisville, Ky., having been warmly introduced by Senate Minority Leader Mitch Mcconnell, who, in 2020, rushed Barrett’s confirmation through the Senate just eight days before the November election. That unprincipled exercise in raw political power increased the conservative majority on the high court from 5-4 to 6-3 — and likely cemented the balance of power on the court for a generation.

The arithmetic means that the court’s five most right-wing justices — Clarence Thomas, Samuel Alito Jr., Neil Gorsuch, Brett Kavanaugh and Barrett — can impose their will even when Chief Justice John Roberts, a conservative but also an institutionalist, decides to side with liberal justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. That is exactly what happened this month when the court let stand a bizarre and draconian Texas law that comes close to nullifying the constitutional right to abortion recognized nearly 50 years ago in Roe v. Wade.

“Judicial philosophies are not the same as political parties,” Barrett claimed in her speech. And it is true that the conservative justices (all appointed by Republicans) and the liberal justices (all appointed by Democrats) reach consensus or cross party lines on many decisions. But on the issues most associated with partisan politics — such as abortion, gun control, affirmative action and voting rights — philosophy and party affiliation function in lockstep on the high court, with Roberts sometimes straying from GOP orthodoxy.

Barrett complained that this is not how the justices see their work. She said that when the media and “hot takes on Twitter” report a decision by the court, that “makes the decision seem results-oriented. It leaves the reader to judge whether the court was right or wrong, based on whether she liked the results of the decision.”

But Barrett is being disingenuous. The Supreme Court’s rulings are not theoretical exercises in abstract legal reasoning. They have real-world results. In Texas, the second-most-populous state in the nation, many reproductive health clinics have stopped offering abortion services because they and their workers could face a ruinous avalanche of civil lawsuits brought by state- and self-appointed anti-abortion vigilantes. Roe v. Wade is still on the books. But in Texas it no longer functionally applies.

Even worse is that the ruling was made on a procedural question without the court even hearing argument on the merits of the Texas law. In a rare public comment, Breyer — one of the four justices who voted to block the Texas law at least temporarily — called the ruling “very, very, very wrong.” And Breyer is very, very, very right to be upset, because even if the ruling is technically just about procedure, it has concrete and dramatic impact on any Texas woman who is or becomes pregnant and doesn’t want to be. Moreover, other states with Republican-controlled state legislatures are rushing to draft copycat laws. If the Supreme Court wants to let states ban abortion, it should just go ahead and reverse Roe v. Wade.

I see no reason to believe the court’s conservative majority will stop short of doing just that. Thomas and Alito have long made clear that they are raring to do just that. And while the three justices appointed by former President Donald Trump — Gorsuch, Kavanaugh and Barrett — all claimed deep respect for precedent at their confirmation hearings, their votes to let the Texas law go into effect say otherwise.

The conservative Federalist Society, which has become a crucial gatekeeper on the right and vetted a list of acceptable Supreme Court candidates for Trump to choose from, did its job well. The result is

a solid five-vote and sometimes six-vote majority that opposes abortion, supports gun rights, questions affirmative action, doubts existing federal protection of voting rights, doesn’t see the influence of big money in politics as a problem ... in short, a majority that agrees with the Republican Party’s position on issues the party most cares about.

What can Democrats and progressives do about all the terrible, reactionary, wrongheaded decisions that look likely to come in the next months and years? On voting rights, they could pass strong new federal legislation, like the John Lewis Voting Rights Advancement Act or the For the People Act. On other issues, they should prepare to battle at the state level — and to bring the same legislative creativity and tenacity that Texas conservatives brought to bear on the abortion law.

And they should ignore Barrett and others who claim this court’s decisions are nonpartisan — at least until and unless we see evidence to the contrary.