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Op-Ed: We now have a far-right Supreme Court. Democrats can’t abandon the battle

The U.S. Supreme Court building at night.
The U.S. Supreme Court is about to become more conservative than ever before.
(Alex Brandon / Associated Press)

I decided to focus my career on constitutional law because I saw it as a crucial tool for improving people’s lives. And for many years, that was true. The Supreme Court, ruling on constitutional challenges, has extended rights and protections to a wide range of Americans.

But as it will be constituted after the rushed confirmation of Judge Amy Coney Barrett, the court is unlikely to continue making society better. With six deeply conservative justices forming a solid majority, the court is instead poised to begin eroding rights and undermining equality.

How did we get here? And, more important, what can we do about it?

To some extent, vacancies on the court have been a matter of historical accident. Richard Nixon had four court appointments in his first two years as president, whereas Jimmy Carter had none during his four years in the White House. Barack Obama appointed two justices in eight years in office, whereas Donald Trump has named three in less than four years.

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Since 1960, Democrats have held the White House for 28 years, and Republicans have held it for 32. But during this time, Democrats have appointed eight Supreme Court justices, whereas Republicans have appointed 15. Since 1988 — and I pick that year because no current justice was appointed earlier than the George H.W. Bush presidency — there have been 16 years of Democratic presidents (Bill Clinton and Obama) and 16 years of Republican presidents (George H.W. Bush, George W. Bush and Trump.) But the Republican presidents have appointed seven justices, whereas the Democratic presidents have selected only four. On a court that is so often divided, that makes all the difference.

And this does not tell the full story. It leaves out Republican manipulation of the process, including when Senate Majority Leader Mitch McConnell (R-Ky.) refused to allow Senate consideration of Obama’s nominee to the court, Merrick Garland, keeping the appointment open for Trump to make. And it ignores the fact that recent Republican presidents have consistently picked extremely conservative rather than moderate justices.

Barrett was as conservative as any federal judge in the United States. Her joining with Clarence Thomas, Samuel A. Alito Jr., Neil Gorsuch, and Brett M. Kavanaugh creates a court that will be as conservative as any in American history.

This is not accidental. The most conservative base of the Republican Party has made it clear for decades that they care greatly about judicial nominations, and Republican presidents have made their picks to please that constituency. Abortion has played a key role. It is striking that we now have a court with six Catholic justices, one Episcopalian who was raised Catholic, and two Jewish justices.

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To be clear, I do not believe anyone should be selected or opposed because of his or her religion. But the current religious composition of the court is not coincidence. One way that Republican presidents have signaled their opposition to abortion rights is through their picks for the court. I have no doubt whatsoever that there are now five justices to overrule Roe vs. Wade, and I believe it will happen soon.

What can progressives do about this? To do nothing is to accept a conservative court for many years to come. Barrett is 48 years old. If she remains on the court until she is 87 — the age at which Ginsburg died — she will be a justice until 2059. Gorsuch is 52 years old, Kavanaugh 54, Roberts 65, Alito 70 and Thomas 72. It is easy to imagine these justices being a majority for another decade or two.

The court is far too important for Democrats to engage in unilateral disarmament. Assuming they win the White House and both houses of Congress on Nov. 3, they must seriously consider expanding the size of the Supreme Court. I realize, of course, that this could invite Republicans someday to do the same when they control the presidency and Congress. But the alternative is accepting a very conservative court for a long time to come.

It also is time to consider term limits for Supreme Court justices. Life expectancy is thankfully much longer today than it was in 1787 when the Constitution was written. Clarence Thomas was 43 years old when he was confirmed to be a justice in 1991. If he serves until he is 90, the age at which Justice John Paul Stevens retired, he will have been a justice for 47 years. That is too much power in one person’s hands for too long a period of time.

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I am deeply afraid of what it will mean to have a Supreme Court majority that embraces the values of the far right of the Republican Party and is far more conservative than the electorate. Doing nothing can’t be the answer.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion.


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