Editorial. Right, all of them! With the confirmation, Monday, October 26, in record time, of Judge Amy Coney Barrett, supported by the religious right, to succeed the progressive Ruth Bader Ginsburg, who died in September, the conservative majority at the Supreme Court of the United States increases to six judges against three. While it is true that the Court has not enjoyed a progressive majority since 1969, never has the proportion of conservative judges been so high.
The coincidence – and the total absence of political scruples from the White House which, denying the position of the Republican Party four years ago, refused to wait for the result of the November 3 election to let the future administration choose a judge in phase with the electoral mood of the country – will have allowed Donald Trump to appoint, in four years, a third of the nine judges of this jurisdiction, which plays an essential role in the life of American citizens.
This regrettable feat is not to be blamed on President Trump alone; it is part of a long-standing strategy of the Republican Party and of the stream of traditionalist jurists in the Federalist Society, whose resolve the Democrats have underestimated. Appoint loyal magistrates, close to Republican ideas, at all levels of the federal judicial system: this objective has been largely achieved in recent years. He has just been successful in the Supreme Court.
Risky strategy
Remarkably executed, this strategy, however, is risky. The Senate, which has confirmed Donald Trump’s three candidates for the Supreme Court, each time with a close vote, represents a minority of the American population. The Republican Party acquires control of the highest American jurisdiction, although it has not won the popular vote since 2004 and demographic trends are not favorable to it. A sign of the country’s extreme political polarization, not a single Democratic senator voted for Amy Coney Barrett’s confirmation, obtained by 52 votes to 48. Judge Barrett herself did not shy away from exploitation policy of his appointment, coming to greet the public and the cameras on the balcony of the White House, after his swearing in, alongside a president in the middle of an election campaign, one week before the election.
The risk is therefore, if the judges, appointed for life, stick to the mission that their political sponsors want to assign to them, of having a Supreme Court out of step with the majority of opinion, and whose decisions will be difficult to accept by a divided society. The question will quickly arise with the examination of an appeal on Obamacare, the health insurance system set up by the former Democratic president. It may also arise later regarding access to abortion, a subject on which Judge Barrett was deliberately ambiguous during her hearing.
The other risk is that of a backlash if the Democrats win the presidential election and take over the Senate on November 3. One of the ideas put forward in democratic circles, that of an enlargement of the Supreme Court, whose Constitution does not specify the number of judges, would not fail to provoke intense political battles. It is therefore to be hoped that wisdom, reason and the rule of law will prevail over passion in the minds of the judges of this new particularly unbalanced Court. The worst is never certain.
