Anchor Staff Writer
On October 26, eight days before the presidential election, Amy Coney Barrett was confirmed to the Supreme Court. In doing so, the court, which was already on shaky ground, has lost its legitimacy as a democratic institution. In the past 32 years, Democratic presidential nominees have won the popular vote in six of the eight past elections and yet Republican presidents have taken the presidency for four of those eight, and of the 14 justices nominated during that time, nine were by Republican presidents.
It’s not mere luck either. It’s political tactics. The electoral college has given us presidents the majority of American citizens do not want, and manipulative politicians like Senate Majority Leader Mitch McConnell have trampled upon democratic norms in favor of forcing their party’s agenda. Merrick Garland, President Obama’s Supreme Court nominee, was not granted so much of a hearing nine months before an election. McConnell claimed the reason was to let the American people speak. They spoke. The majority voted for Hillary Clinton, but Trump took the presidency and with it the Supreme Court nomination. Now, barely more than a week before an election, McConnell has no desire to let the American people speak because he does not like what they’re going to say.
Conservatives love to cry “court-packing!” in response to Biden’s vagueness towards what he would do about the Supreme Court should he win the presidency, but it’s not the Democrats who have the history of court-packing. As more justices are confirmed by presidents who should not have been able to confirm them, who did not win the presidency with the support of the majority, or even a plurality, of American citizens, the court is losing its legitimacy.
The justices know it too. That’s why recently Chief Justice Roberts has been voting against some of his own views in cases with greater media attention. But with Barrett’s confirmation, it’s not enough. Five justices, more than half of them, have been confirmed to the court by presidents the majority of Americans did not vote for and do not support.
The Supreme Court cannot be considered a democratic institution. At this point, it can better be categorized as a danger to democracy, functioning as a political tool to bolster the agenda of conservatives and preclude them from being held accountable for their actions.
If Joe Biden wins the presidency, as he seems on track to do, reform of the Supreme Court must be a priority. Term limits must be introduced; 18 years is a common suggestion because it would provide each president with the ability to nominate two justices per term. The filibuster and the power senate majority leaders have to stop a nomination without any legitimate cause must be eliminated. Mandatory retirement ages and requiring a higher number of senate confirmations are also options to consider.
Until we reform the court, its function is not as an institution of democracy, but one of tyranny.