Commentary, Courts & the Law

Veteran journalist: Supreme Court’s legitimacy hits new low with unseemly Barrett confirmation

Mourners line up outside the U.S. Supreme Court for the public viewing for the late Justice Ruth Bader Ginsburg. Photo: Laura Olson.

Be sure to check out veteran Washington Post columnist Dana Millbank’s morning essay on the dreadful spectacle that was the Amy Coney Barrett confirmation process.

As Millbank explains:

Senate Republicans rammed through Barrett eight days before an election Trump seems likely to lose, and even though Trump has made clear he’s counting on the Supreme Court to overturn the result. They did this in an extraordinary public display of hypocrisy, four years after refusing to seat an Obama nominee to the high court because, they said then, that doing so more than eight months before an election was too soon. And they did this after abolishing the minority’s right to filibuster.

Barrett, in her confirmation hearing, made a mockery of the supposed “originalism” and “textualism” she professes to practice. She conspicuously refused to say whether a president could unilaterally postpone an election and whether voter intimidation is illegal — matters unarguable under the clear words of the Constitution and statutes.

As Millbank explains, it’s now up to Chief Justice John Roberts to save the high court:

If the chief justice wishes to restore dignity to the Roberts Court, it’s clear enough what needs to be done:

He can lean heavily on Barrett to recuse herself from any case arising from the presidential election next week.

He can use his influence to make sure the court upholds the Affordable Care Act after it hears arguments next month — not a legalistic punt on technical matters of “severability” but a ruling that puts an end to the constant assaults on Obamacare.

He can persuade his conservative colleagues to join him in upholding the rights of LGBTQ Americans as established in the 2015 Obergefell case, by rejecting a challenge to it by Catholic Social Services that will be argued the morning after the election next week.

He can forge a majority to reject Trump’s latest tired attempt to use the Supreme Court to further delay handing over his financial records to New York prosecutors.

And he and his colleagues can agree to hear one of the many challenges to Roe v. Wade now making their way through lower courts — and vote to uphold Roe for now. That would be the surest sign that the Roberts Court is not going to turn (immediately at least) into the reactionary caricature that most expect.

If Roberts and his conservative allies on the court don’t do at least some of this in the next few months, they can count on being joined next year by a whole batch of new colleagues. Mr. Chief Justice, and may it please the court: Your move.

Click here to read the entire essay.

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