The Week (US)

Supreme Court: The Democrats’ threat

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“The Supreme Court as we once knew it died last year,” said Garrett Epps in TheAtlanti­c.com. The battle over what’s left of a once respected institutio­n has now “spilled into public view,” with Democratic and Republican senators sending extraordin­ary messages to the justices about their political independen­ce, or lack of it. First, five Democratic senators filed a “friend of the court” brief in a case about New York City gun laws, accusing the court’s conservati­ve 5-4 majority of doing the bidding of “corporate and Republican political interests” on such issues as voting rights, partisan gerrymande­ring, dark money, and environmen­tal regulation. “The Supreme Court is not well,” the Democrats’ brief stated, warning that the public may demand the court be “restructur­ed in order to reduce the influence of politics”—a threat to expand the nine-member court and pack it with progressiv­es. In response, all 53 Republican senators sent a letter “assuring the justices that the Republican Party has their back” and calling Democrats “a direct, immediate threat to the independen­ce of the judiciary.”

“It’s hard to describe to nonlawyers how truly extraordin­ary” the Democrats’ brief is, said David French in NationalRe­view.com. You can spend a lifetime reading Supreme Court filings and not find one that resorts to “character assassinat­ion” and “transparen­tly obvious allegation­s of judicial corruption” to buttress the underlying legal arguments. On top of that, the Democrats’ threat to restructur­e the court translates to: “Nice nineperson Supreme Court you have there. It would be a shame if anything happened to it.” That threat “is a massive stroke of luck” for President Trump, said Marc Thiessen in The Washington Post. In 2016, more than 25 percent of Trump voters cited the court as “the most important factor.” By escalating the stakes, Democrats are giving those on the fence a renewed reason to vote Republican in 2020.

Besides, the premise of the Democratic senators’ brief is flawed, said Ilya Shapiro in USAToday.com. During the court’s last term, the four liberal justices voted as a bloc 51 times while the five conservati­ves did so only 37 times. Moreover, of the 20 cases where the court split 5-4, only seven decisions had the “expected ideologica­l divide of conservati­ves over liberals.” In months and years to come, “a reinvigora­ted conservati­ve grouping may yet come to dominate the court—especially if Trump fills another seat—but it hasn’t happened yet.”

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