How would Joe Biden handle a Supreme Court dangerously out of touch with the people?

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Despite all the heat Joe Biden has taken for refusing to clarify his position on Supreme Court “packing,” he is right to reject the question, especially since we don’t know what kind of justice Amy Coney Barrett will be. Will she decide cases purely on their legal merit? Or will she be a prisoner of ideology?

In appearing before the Senate Judiciary Committee, Barrett pledged to rise above politics. Policy decisions, she declared, “must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so, and courts should not try.”

Nonetheless, some are troubled by her previously expressed views. In an article, Barrett criticized the 2012 Supreme Court decision that (temporarily, at least) saved the Affordable Care Act. One “would be hard-pressed to find many originalists who think that a court should find a way to uphold a statute when determinate text points in the opposite direction,” she asserted. That position has fueled concern that Barrett might strike down not just the Obamacare decision but other decisions (including the right to abortion) that rest on contested doctrine. The most worrisome thing, to some, about the article is that it reflects an ideology associated with the Federalist Society.

The Federalist Society juggernaut

The Society, a legal organization founded at Yale in the early 1980s, is dedicated to the philosophy of “originalism” — which means interpreting the Constitution not as a living document but as one fully constrained by the intent of the Founders. The society became a force during the Reagan administration. By the time George W. Bush took office, it had become a juggernaut, with the full backing of the Republican establishment. Both of Bush’s Supreme Court picks and most of his appointees to the federal appeals courts were Federalist Society members.

The society’s influence is so pervasive that many liberals see it as a threat to democratic governance. They believe the society and its Republican allies are attempting to use the courts for political ends, “that is, to overturn progressive Supreme Court precedent and congressional legislation through the appointment of extremely conservative federal court judges,” observed scholars Nancy Scherer and Banks Miller in the Political Research Quarterly. 

Without question, the Republican Party, assisted by the society, has moved aggressively to remake the federal bench. In reviewing Trump’s 51 appellate judge appointees in March, the New York Times concluded that the group “much like the president himself, breaks significantly with the norms set by his Democratic and Republican predecessors.” Those appointees “who make up more than a quarter of the entire appellate bench — were more openly engaged in causes important to Republicans, such as opposition to gay marriage and to government funding for abortion.”

They were also more likely than previous Republican appointees “to disagree with peers selected by Democratic presidents, and more likely to agree with … Republican appointees.” The Federalist Society claims to be a nonpolitical entity, but the Times found that “all but eight of the new judges” had ties to the organization.

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Whether due to the influence of the Federalist Society or simply to its own proclivities, the Republican Party has become increasingly combative. The party denied Merrick Garland, Obama’s Supreme Court pick, a hearing supposedly because he was nominated during a presidential election year; but it has no problem pushing Barrett through. Indeed, it used every tactic available to hold judicial slots open until a Republican president arrived to fill them. Trump took full advantage of his party’s maneuvering.

Last June, on the occasion of Trump’s appointment of his 200th judge, Jennifer Bendery of the Huffington Post summed up the fruits of his efforts: “two Supreme Court justices, 53 appeals court judges, 143 district court judges and two judges on the U.S. Court of International Trade.” Of those 53 appeals court judges, noted Bendery, “none are Black. Eleven are female. Seven are Asian Pacific American. One is Latino. Thirty-six are white men.” During the vice-presidential debate, Sen. Kamala Harris, slammed the Trump administration for its lack of Black appellate court appointees. 

Correct for courts forced to the right 

It’s hardly surprising that racial diversity had no place on Trump’s agenda, which seems to be doubling down, to the delight of his base, on the effort to force the federal court system further to the right — even if that is the opposite of what most Americans want.

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Given that reality, the pertinent question for Biden is not whether he believes in packing the court but whether he sees a way to correct for some 40 years of blatant political activism that has left the federal courts full of far-right conservatives dedicated to transforming America. What should we do, Mr. Biden, if we end up with a Supreme Court dangerously out of touch with the American public? Do we, in the interest of political decorum, simply accept that, and ask the next generation (these are lifetime appointments) to accept it as well? What is the proper response, Mr. Biden, when a party that once stood for recognizable political principles now stands determined to seize — through voter suppression, court stacking, and any other tool available — power that the majority is unwilling to grant it?

Would we ask a boxer staring at an opponent brandishing brass knuckles and a switchblade whether he is willing to abide by Marquess of Queensberry rules? If not, why ask the equivalent of Joe Biden, when the question so evidently makes no sense?

Ellis Cose is a member of Paste BN's Board of Contributors and the author of "Democracy, If We Can Keep It: The ACLU’s 100-Year Fight for Rights in America," which was published in July by The New Press. Cose’s “The Short Life and Curious Death of Free Speech in America" was published by Amistad last month. Follow Cose on Twitter: @EllisCose