A Different Kind of Supreme Court Reform Is Already Happening

[marmar]

A Different Kind of Supreme Court Reform Is Already Happening
The left is finally paying attention to the court, and it might be having an impact.

BY DAHLIA LITHWICK


(Slate) Progressives desperately need massive structural court reform and they need it now. This is not a theoretical problem. Donald Trump’s takeover of the federal bench, coupled with conservative lower court judges emboldened to work quickly without need for any existing legal precedent, plus a looming clock ticking down to 2022 and the potential loss of Democratic control of the Senate, means that anyone interested in meaningful voting rights, LGBTQ rights, worker protections, the environment, or racial justice understands that unless big reforms come on short timelines even bold Biden initiatives do not survive the decade. It’s no wonder progressive court reformers were maddened both by Biden’s commission to study the court—which will take six months to report on legal questions some of its members have already been studying for decades—and again by last week’s legislative effort to expand the court, which was strangled on arrival by Nancy Pelosi the same day it was introduced. One need not be a master of history or parliamentary procedure to understand that the window for fixing a dangerously activist and unrepresentative Supreme Court is closing quickly.

It’s not surprising that many of those who best understand the need for court reform best are the ones most frustrated by these halting baby steps. As Elie Mystal, my colleague Mark Joseph Stern, and Ian Millhiser all note, it sure feels like the people tasked with taking structural court reform seriously are doing the very opposite. But putting aside the pros and cons of swift and decisive court expansion, the persistent fury that the Biden Administration isn’t taking the onrushing tyranny of the Trump judiciary seriously may be missing one crucial factor: Court reform doesn’t come exclusively from changing the size and structure of the bench. It can also come informally, from the people exerting pressure on the current justices—and there’s good evidence that’s already happening.

Among the many unexplained mysteries of the current Supreme Court term, perhaps the greatest is the mystery of the court’s failures to take up major gun rights appeals, or a long-simmering 15-week Mississippi abortion ban that might be the perfect vehicle for a challenge to Roe v Wade. The conservative justices, who have—to be sure—tacked quickly and radically rightward on the court’s effervescent religious freedom docket, do so under cover of its shadow docket. But as Ariane de Vogue reported recently at CNN, the conservative legal movement that spent buckets of money and capital to seat Amy Coney Barrett is already feeling “disappointed and a little despondent” about her. The newest Justice is looking “timid” to them, and failing to take the bold actions they demanded. Among some conservative court-watchers the frustration is palpable about both the Mississippi abortion case and gun challenges, as was her refusal to join Justices Alito, Thomas, and Gorsuch, in accepting a challenge to the presidential election results; an outcome that has left Trump furious with the court. As de Vogue writes, Barrett’s refusal to tack hard right in her early months at the court raises the possibility, at least according to one unnamed conservative source, that “the court would end up in a 3-3-3 lineup in some cases with the liberals on one side, and Chief Justice John Roberts, Justice Brett Kavanaugh, and Barrett in the middle and Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas on the far right.”

This fractionally more moderate bump at the center of the current court has proved maddening for conservative legal movement because it also contains the Chief Justice, John Roberts, who was a reliable fifth vote for business and against regulation, to curb voting rights, to expand religious liberty, to diminish reproductive and LGBTQ rights, and otherwise put into effect the Reagan/Bush conservative judicial wish list. And yet Roberts’ defections—they would say betrayals—in recent years, have piled up, first on challenges to the Affordable Care Act but more recently in June Medical, a seminal abortion challenge from last term. Roberts is not on board in the growing series of cases setting aside state COVID measures in favor of religious challengers. With the death of Ruth Bader Ginsburg this fall and the addition of Amy Coney Barrett soon after, Roberts went from being the essential fulcrum on a court split between 4 liberal and 4 very conservative jurists, to a choice between being the 6th conservative on a far-right court, or a dissenter. After years spent quietly steering the court, to the right, with incremental, sometimes invisible moves, with an eye toward protecting institutional prerogatives, the master of the long game ran out of track. ...........(more)

https://slate.com/news-and-politics/2021/04/scotus-court-reform-already-happening.html

[Fullduplexxx]

1. Until the dems are no longer in charge and expanding the court is no longer a possibility

[Probatim]

2. I thought it was Mitch McConnell and the Heritage Foundation that packed the courts.

And Mitch McConnell who blocked Obama's appointees time and again.

The problem is tyranny of the minority - which helps the minority pack the courts to prevent real change in this country.

[Mr. Joe Steel]

3. The Chief's Gambit?

Apparently, John Roberts is willing to give-up some right-wing victories now to gain bigger victories later. I didn't realize the conservatives were that committed to seizing SCOTUS. I've always entertained the idea they were at least nominally committed to the rule of law applied without favor or ulterior motive.

Guess not.