On Oct. 26, Amy Coney Barrett was confirmed as the 115th Associate Justice of the U.S. Supreme Court in a 52-48 vote of the U.S. Senate, just 30 days after her nomination. Her confirmation process was controversial and unusual in many respects, particularly regarding its partisan nature, according to Mark Kende, the director of the Drake Constitutional Law Center, James Madison Chair in Constitutional Law and professor of law at Drake University.
“It’s pretty rare to see anything like this right before an election,” Kende said. “It was pretty unusual in terms of how fast it was and, I think, how political it was.”
Maddie Smith, a junior studying economics at Drake and current president of Drake Students for Life, finds this politicization troubling. She suggests the problem is the way people frame the issue.
“I don’t think that a, as you say, 6-3 conservative majority is the right way to view the Supreme Court,” Smith said. “It’s nine justices interpreting the law. And whether or not they do that in a way that liberals or conservatives see as appropriate is up to each individual person.”
Adam Koch, a junior studying LPS and Politics at Drake, who identifies as a member of the Democratic Party, also dislikes how political the Supreme Court has become.
“I find that very disheartening,” Koch said. “It erodes the legitimacy and the power of the Supreme Court if it just becomes a partisan squabble, because as soon as that happens…then the next step is, ‘whoever’s in power is going to begin to court pack,’ and then the Supreme Court just won’t be a body that the American people care about.”
However, Kende said that beyond the way Barrett’s confirmation was conducted, she was otherwise a typical nominee.
“[Barrett], n terms of having very, very excellent academic credentials and being a very well-regarded lawyer and being a judge at another court before joining the U.S. Supreme Court; those are pretty typical credentials,” Kende said.
Emotions ran high throughout the process, in part due to rampant speculation on how Barrett, a conservative originalist, may rule on any number of current or future cases—and how that will affect the lives of everyday Americans.
“[Healthcare] is definitely an issue that I pay particular attention to,” Koch said. “With a chronic health condition, and I guess, a pre-existing health condition, it’s something that I have to be very much aware of. Especially as a college student; I’m relying on my parents’ healthcare coverage right now.”
The Supreme Court will hear a case on Nov. 10 regarding the Affordable Care Act, the outcome of which may affect coverage that Koch and other students like him receive. If the court rules part or all of the ACA unconstitutional, millions of Americans may lose the healthcare the act currently provides.
But what does this all mean for the future of the U.S. Supreme Court itself?
For one, the political balance of the court has radically shifted.
“I think [the court] is definitely going to move in a conservative direction for a while, though maybe not too quickly,” Kende said.
If they do move too quickly, Kende believes this may affect the legitimacy of the court in the public’s eye, but that is less likely than you might think.
“I think if they did something dramatic to abortion or gay marriage within, let’s say the next year or two, that would be a sign that would create legitimacy issues for the public,” Kende said. “But with the exception of [same-sex marriage], the court tends to move what I would call incrementally: step by step. You don’t throw out Roe v. Wade and throw out abortion, but maybe you allow stronger limitations or stronger efforts by the government to encourage women to not have an abortion.”
If the Democratic Party retakes the Senate and the Presidency, it is possible its members will take steps to balance the partisan scales of the Supreme Court, in any of a variety of ways.
“One very fascinating solution that I read about,” Koch said, “[was] the idea was to have nominated five democrats, five republicans, to the supreme court, and then have another five slots that those ten have to unanimously agree and vote upon. So, that way you would have a very evenly split group of five folks on the right, five folks on the left, and then five folks who, because everybody else had to agree on them, definitely are going to be go in this right in the middle.”
Other options include:
Adding justices to the court, more commonly referred to as “court packing”: “The court packing is the one that probably would create the most legitimacy problems,” Kende said. “In terms of the mere fact that it’s called court packing, [which] is not a compliment.”
Instituting term limits for the justices: “There would be more rotation, and then each president would get more opportunity to nominate,” Kende said. “I’m not sure term limits would raise as many issues [as court packing], although there’s actually some potential constitutional problems with that…it depends on how it’s done.”
Or even limiting the jurisdiction of the court: “Hypothetically, if you had a Democratic congress and president and they started to think that the court was going way too far, they could try to pass some laws limiting what cases the court could hear,” Kende said.
For some people, like Smith, the mere idea of changing the way the court works because of Barrett’s confirmation is a problem.
“I think the problem is that the Senate has switched from looking at, ‘Are you qualified to give a legal expert opinion,’ to, ‘Are you qualified to give me an opinion that I like?’” Smith said.
But the possibility of such changes is still uncertain. For one, President Trump may yet win the election, in which case discussion of what Democrats would do is moot. In addition, former vice president Joe Biden has displayed some reluctance to fully support such measures, specifically the aforementioned “court packing;” at times going to great lengths to avoid taking a public stance on the issue one way or the other.
Either way, it is clear that much the future of the Supreme Court will be decided by the results of the 2020 election.