Skewing the U.S. Courts
Mike Minehan
10 April. 2021

One of the longest running battles in the USA has nothing to do with the military or the war against drugs. The most significant battle of them all is about control of the courts.

Court decisions can affect basic rights and values such as freedom of speech, privacy, equality, the right to vote, immigration, corporate responsibility, taxation, police reform, gun laws and even reproductive rights. Yes, if you're female, states want to control whether or not you can choose to have an abortion.

These decisions can be highly political. This video about ex-President Trump's first term explains more.

 

The battle over controlling nominees to the Supreme Court of the USA (SCOTUS) has been even more bitter. For example, in 2016, then-president Obama, a Democrat, nominated Merrick Garland to fill the vacancy left by the death of the Republican-nominated Antonin Scalia. But the then Republican-controlled senate refused to vote on Obama's nomination, claiming that the election cycle of the 2016 Presidential elections had already begun, and therefore, the appointment of the next justice was an issue to be decided by the next government.

After the election of Trump in 2016, the Republican-nominated Neil Gorsuch was then appointed to the Supreme Court. Politico described Gorsuch as "Scalia 2.0" due to ideological similarities. (1)

And then, following its plethora of pious protestations that presidents shouldn't be allowed to fill Supreme Court vacancies during presidential election years, the Republican-dominated senate turned around and did exactly that. The Senate rushed through the nomination and confirmation of Justice Amy Coney Barrett, followiing the death of Justice Ruth Ginsberg, just before Trump lost the 2020 election. (2) 

The appointment of Barrett was seen as swinging the political balance of the Supreme Court to a 6-3 conservative majority. (3)

The Editorial Board of The Washington Post described the Republican claims as a 'preposterous lie' that they rushed through such Supreme Court appointments 'not for political advantage but because of an invented "rule" that no Supreme Court vacancies should be filled in the final year of a presidential term'. (4)

Well, this battle is far from over. House and Senate Democrats have now introduced a bill to increase the number of Supreme Court justices from 7 to 13. (5)  And another Democrat bill will seek to reduce the life terms of SCOTUS Justices. (6)

But trying to change the structure of SCOTUS is controversial:

Other changes to the political structure could include the appointment of more senators to better reflect imbalances in representation.

The current structure of the Senate, that allows for only 2 senators per state, disproportionately represents less populous states. This results in a lopsided Senate where, for example, each senator in California represents 68 times as many people as senators from Wyoming. Also, there's no Senate representation for the District of Columbia.

Redressing this imbalance would mean appointing more senators to represent California and Washington D.C. And guess what? Voters in California and Washington D.C. tend to vote Democrat, and more senators for these states would significantly shift the existing power balance of the Senate.

But there's an even deeper problem in need of fixing, and this is voter suppression. GOP membership is nearly 90 per cent white, and is aging. (7)  People of color and newer, millennial voters who tend to vote Democrat are not welcomed by the GOP in the polling booth.

This is why, when Republicans were unable to prove their claims of voter fraud during the 2020 elections, they moved swiftly to introduce 361 bills with restrictive provisions in state governments that they controlled. (8)

The most notorious of these provisions have been in Georgia, where Republicans lost to Democrats during the last elections.

Free and fair elections in America? Not yet. And SCOTUS stepping in to provide a level playing field? Hold your breath on that one, too. 

Yes, American democracy has major problems. And these problems don't look like going away soon. More conflict is inevitable.

References

1 Primus, Richard (January 31, 2017). "Trump Picks Scalia 2.0". Politico. https://www.politico.com/magazine/story/2017/01/trump-gorsuch-supreme-court-scalia-20-214718 

Editorial Board, Washington Post, 22 Sept., 2020.

https://www.washingtonpost.com/opinions/judicial-term-limits-are-the-best-way-to-avoid-all-out-war-over-the-supreme-court/2020/09/21/c85bf12a-fc22-11ea-b555-4d71a9254f4b_story.html

Wu, Nicholas, Hayes, Christal, 2020. USA Today.

‘Amy Coney Barrett confirmed to the Supreme Court, giving conservatives a 6-3 majority’. 26 October. USA Today.

https://www.usatoday.com/story/news/politics/2020/10/26/amy-coney-barrett-senate-vote-confirm-judge-supreme-court/3741746001/

4 Waldman, Paul, ‘We can make the Supreme Court less partisan if we choose’, The Washington Post, 16 April, 2021,

https://www.washingtonpost.com/opinions/2021/04/15/we-can-make-supreme-court-less-partisan-if-we-choose/

5 Levine, Marianne, 2021, ‘Democrats to introduce legislation to expand Supreme Court’. Politico, 14 April.

https://www.politico.com/news/2021/04/14/democrats-supreme-court-481640

7 Pew Research Centre, ‘The changing composition of the political parties’ 13 Sept., 2016. https://www.pewresearch.org/politics/2016/09/13/1-the-changing-composition-of-the-political-parties/

8 Newman, Nathan, ‘How red states silence urban voters’. 9 April, 2021. The Week.

https://theweek.com/articles/975837/how-red-states-silence-urban-voters