Respite for American Democracy

The author is a junior research fellow at the Raoult-Dandurand department, where his work is focused on the study and analysis of American politics.

The announcement of the resignation of Justice Stephen Breyer of the US Supreme Court on January 27 came as no shock. The fact that he is the dean of the court at 83 made his departure predictable, a moment that even some members of President Joe Biden’s entourage were looking forward to.

Indeed, this departure will provide Democrats with an opportunity to replace this Bill Clinton-appointed, left-wing Court judge before the midterms with a lawyer from a similar movement: Ketanji Brown Jackson, currently a judge on the prestigious US Federal Court of Appeals.

Even if Jackson, once confirmed by the Senate, whose hearings run from March 21 to 24, does not violate the ideological composition of the court, this appointment is historic: the lawyer will become the very first African American to sit on the court. Supreme.

It also underscores this decisive power vested in the president, whose choices affect the lives of Americans for decades.

From one president to another

However, this leverage, which the tenant of the White House possesses, is not guaranteed. It all depends on the chances of life … and on the composition of the Senate, which has the last word.

If Richard Nixon was able to replace almost half of the Court – only during his first mandate (1969-1973) – by obtaining the confirmation of the appointment of four new judges, then Jimmy Carter (1977-1981) was not in a position to achieve this. one, the same for George W. Bush during his first term.

Thus, in his second year in the White House, Joe Biden has the opportunity to leave a mark that will no doubt outlive him for a long time.

For many Democrats, this is likely to be a meager consolation prize, as Trump’s four years have consolidated the Court’s conservative majority by 45as well as the president made three appointments that were especially hard for them to swallow.

Recall the facts: In 2016, the last year of Obama’s presidency, Judge Antonin Scalia, one of the most conservative members of the Court, died suddenly in his sleep, giving Obama the opportunity to replace this magistrate appointed by Ronald Reagan in 1986.

However, a Republican majority in the Senate is blocking any consideration of an Obama-appointed judge … until Donald Trump enters the White House, nearly a year later. And the latter appoints a new judge, Neil Gorsuch, a choice that the Republican Senate hastens to approve. This is Trump’s first nomination.

In 2018, Trump chose Brett Kavanaugh over Judge Anthony Kennedy (another Reagan nominee, but considered more centrist). A public hearing in the Senate turns into a national psychodrama when he is accused of sexual harassment, including by Professor Christine Blasey Ford. The Senate confirms Kavanaugh with the narrowest majority in history, 50 to 48.

Then, in 2020, 50 days before the presidential election, Dean of the Court and leader of its most progressive wing, Ruth Bader Ginsburg, died. In her place, Trump chooses Amy Coney Barrett, a much more right-wing lawyer. And the Republican Senate, which delayed Obama’s last nomination by 10 months in 2016, is rushing Barrett’s confirmation process in less than a month, allowing her to be sworn in within a week of the presidential election.

Democrats see a red light and believe they are the victims of injustice. Some are considering extreme solutions, such as the possibility of adding seats to the court after taking office to reduce the Conservative majority.

The idea is risky for the credibility of this institution: each time one of the two parties again controls the apparatus of government, it will only need to add seats to blur the majority that was created by the previous administration. The Court, which had long been more trusted than either the President or Congress, could be seen as a crude extension of political power.

Judge Breyer himself saw fit to come out publicly last year to warn of the potential harm such reform could do to the institution. This idea seems, at least for the moment, to be buried after the work of the commission to study the reform of the Supreme Court, created by Biden.

By electing Ketanji Brown Jackson, the president has made a choice that will likely rally all Democrats and, who knows, maybe even a handful of Republicans in the Senate.

Another scenario could easily have gone like this: Like the late Judge Ginsburg before him, Breyer hangs on…and leaves office, perhaps for natural reasons, after the Republicans regain a majority in the Senate next November. And the latter do not allow Biden, like Obama, to take any seat on the Court … until a Republican president like Donald Trump returns to power.

In their bestseller How democracies diepolitical scientists Steven Lewicki and Daniel Zieblatt warn against a practice they call ” constitutional hardball “: pushing the country’s constitutional machinery to the extreme just for the sake of party gain, without considering the impact on the democratic and social fabric. This ultra-partisan approach to Supreme Court appointments is one of the main examples they cite as contributing to the erosion of democracy.

By replacing Justice Breyer with Justice Jackson, Joe Biden may not revolutionize the Supreme Court. He will still have the opportunity to restore, at least temporarily, the image of democracy that millions of Americans have in their country.

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