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Jennifer Rubin is a columnist for the Washington Post. I believe she was chosen to express a conservative view but she was quickly repelled by Trump and Trumpism. In this column, she explains how a Democratic Congress can protect progressive policies—by doing their job.
The prospect of Republican senators marching lock-step to confirm a justice — picked precisely because of her hostility to the Affordable Care Act and legal abortion — should help Democrats boost their already commanding position in Senate races. Only by retaking the Senate can a Democratic-led Congress prevent conservative rule by the judiciary.
Come to think of it, wasn’t an overly powerful Supreme Court something Republicans used to worry about? Back when Roe v. Wade was decided, they argued that the political branches of government should determine such issues; now they seek refuge in an uber-conservative Supreme Court out of step with a large majority of Americans on everything from guns to abortion to health care.
If Democrats do go on to win the White House and have comfortable majorities in both chambers, they can begin to defang a Supreme Court that has been stocked with rigid ideologues. Much has been made of the Democratic threat of “court packing” (was it “court stripping” when Republicans decided that eight justices were enough rather than consider the nomination of Judge Merrick Garland?); however, the threat of adding justices to the bench may have its intended effect in curbing the court’s quest to overturn decades of precedent. It is the last card to be played, not the first.
Instead, the first step Congress should take is — get ready! — to legislate. It can pass a federal statute (likely to require the demise of the filibuster if it cannot be accomplished in a reconciliation bill) to codify Roe (which draws more than 60 percent support) and, if lawmakers see fit, stripping out the Hyde Amendment that limits federally funded abortions to cases of rape, incest or cases in which the life of the mother is at risk. In other words, the federal government can decide not only to protect the right to seek an abortion but also to make abortions more accessible to poor women. We can argue whether that is a good or bad policy, but no one can argue that Congress has no prerogative to address the issue. Nor can anyone say that Congress can’t, say, pass a Defense of All Marriages Act, which would secure same-sex marriages.
Congress can also “fix” the Affordable Care Act, which it intends to expand anyway, should the Supreme Court strike the law down on the basis that the tax justification that Chief Justice John G. Roberts Jr. used to uphold the law vanished when the individual mandate fell out.
Call this the Ruth Bader Ginsburg approach. When the Supreme Court refused to extend the statute of limitations in wage discrimination lawsuits, her dissent in Ledbetter v. Goodyearinvited Congress to amend the statue. It did. Much of the anti-democratic, precedent-busting work of a hyperpartisan Supreme Court can be undone by a unified Congress and White House.
Congress can also use its constitutional power to limit the jurisdiction of the court’s appellate power and to limit the terms of justices. If the Supreme Court is to be a partisan outfit, then give it less to do and make each seat less valuable.
Conservatives are rushing through a rock-ribbed conservative with little regard for precedent for one reason: They are watching their electoral majority slip away — and, “worse,” they know their prospects of a comeback are diminishing, given that the electorate is looking more and more like America and that voting is not being suppressed. A court that zigzags its way through the Constitution depending on the policy preferences of the presidents who appointed them is not a court that will engender respect. It is one that needs to be cut down to size.