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NYT's The Morning email on the Supreme Court -- (edited)
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Over the past 32 years — a period that includes the naming of every current Supreme Court Justice — Democrats and Republicans have each held the White House for four terms. In six of those eight elections, the Democratic candidate won the popular vote.
Those two facts offer a pretty good summary of the country’s political makeup. It is split fairly evenly between Democratic and Republican voters, with a modest lean toward Democrats.
The Supreme Court, however, now has a very different makeup.
With the confirmation last night of Amy Coney Barrett, Republican-appointed justices hold a 6-to-3 majority and will probably control the court for years to come. The current six-member majority also happens to be sharply conservative and often quite aggressive, willing to substitute its own judgment for that of Congress, the president or state governments — on voting rights, campaign finance, health care, consumer protection, workplace law and more.
How did the Supreme Court end up so disconnected from a generation of election results? Circumstance — when justices happen to have died — plays a role. But so does the unprecedented 2016 move by Mitch McConnell, the Senate Republican leader, to refuse to let Barack Obama fill a vacancy.
And so does the insistence by Ruth Bader Ginsburg to stay on the court in 2010, when she was in her late 70s and fighting cancer, rather than allowing a president who shared her political views to replace her. Instead, Barrett, who has many opposite views, now holds Ginsburg’s seat.
I know that different people will put different weight on these factors, with many willing to defend either McConnell’s or Ginsburg’s decisions. But regardless of how we got here, the country has arrived at a tricky place.
The Supreme Court has asserted itself in recent years as arguably the country’s single most powerful institution, handing down the last word on many of the most hotly debated issues. At the same time, the court has developed a strong outlook that most Americans do not share. That outlook is the result less of any election outcomes than of circumstance and political tactics.
It’s a combination that has the potential to cause widespread voter frustration and ultimately a constitutional showdown. “In America today,” the political scientists Steven Levitsky and Daniel Ziblatt, recently wrote in The Times, “the majority does not govern.” They added, “This is minority rule.”
Chief Justice John Roberts, one of the court’s six Republican appointees, seems worried about how this situation could threaten the court’s legitimacy. That helps explain why Roberts has voted against his own apparent views in some (but not all) high-profile recent cases.
Of course, Barrett’s confirmation means that Roberts is no longer the swing justice. There is a conservative majority even without Roberts. How daring will it be?
What’s next: Barrett could begin work at the court as soon as today. Among the first issues she may face, according to The Times’s Adam Liptak, are cases from North Carolina, and Pennsylvania, concerning deadlines for mail-in ballots.
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