The Washington Post

The Supreme Court isn’t partisan? Good luck with that.


“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, having been warmly introduced by Senate Minority Leader Mitch Mcconnell (R-KY.), 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 A., Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Barrett — can impose their will even when Chief Justice John G. Roberts Jr., a conservati­ve but also an institutio­nalist, decides to side with liberal justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. That is exactly what happened earlier 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.

The Supreme Court’s rulings are not theoretica­l exercises in abstract legal reasoning.

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 stateand self-appointed antiaborti­on 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 Republican­controlled 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 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, such as 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.

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