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    Bernie Sanders says he opposes urging Justice Sonia Sotomayor to step down

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    Bernie Sanders said he opposes any move to force Sonia Sotomayor, the senior liberal justice on the US supreme court, to step down so that Joe Biden could nominate a younger liberal replacement before he finishes his term as president.Sotomayor, 70, is known to suffer from health issues, and some Democrats fear a repeat of Ruth Bader Ginsburg, who died during Donald Trump’s first term – giving him a third opportunity to nominate a new justice and further shore up the top court’s conservative bent.In his first term, Trump appointed Neil Gorsuch to replace Antonin Scalia, Brett Kavanaugh to succeed Anthony Kennedy, and Amy Coney Barrett to take the place of Ruth Bader Ginsburg, who died less than two months before the 2020 election – leaving six largely conservative judges to just three liberals.Trump’s first-term appointees to the court were critical to overturning abortion rights and a series of other rulings that delighted conservative activists.In an interview on NBC’s Meet the Press, Sanders, a progressive senator who identifies as an independent but usually votes with Democrats, said it would not be “sensible” to ask Sotomayor to step down while Biden is still in office.He added he’d heard “a little bit” of talk from Democratic senators about asking Sotomayor, who is serving a lifetime appointment to the supreme court, to step aside.“I don’t think it’s sensible,” Sanders said, without elaborating further.No elected Democrat has so far publicly called on the justice to resign, but the idea comes amid a feverish effort by Democrats to “Trump-proof” their agenda before the Republican takes office in January.Supreme court justices are nominated by the sitting president but face an often grueling confirmation process in the Senate. With Democrats soon to lose control of the body, the opportunity for Biden to appoint – and for Democratic senators to confirm – a successor to Sotomayor is fast slipping away.Biden appointed Justice Kentanji Brown Jackson to the supreme court. She was confirmed in 2022. However, with just two months left in office, it is unlikely that Biden and a Democrat-controlled Senate would be able to nominate and confirm a new justice to the court in time.Democrats have previous floated the possibility of increasing the number of justices to counter the court’s political make-up. In July, Biden proposed term limits and a code of ethics for court justices, after a series of scandals relating to the conservatives Clarence Thomas and Samuel Alito called into question their impartiality.skip past newsletter promotionafter newsletter promotionBiden said the court had “gutted civil rights protections, taken away a woman’s right to choose, and now granted Presidents broad immunity from prosecution for crimes they commit in office”.In a second term, meanwhile, Trump could have the opportunity to further deepen the court’s conservative leaning, as Thomas and Alito are both in their mid-70s.Just as Democrats are considering whether Sotomayor should step down to install a replacement liberal justice, Republicans could do the same after they take power in January. “Alito is gleefully packing up his chambers,” Mike Davis, a conservative legal operative, predicted on social media this week.Although a Republican majority in the Senate refused to take up confirmation hearings in 2016 when Barack Obama nominated Merrick Garland to replace Antonin Scalia, protesting that to do so in an election year would be unfair, they had no such problems when Trump nominated Barrett to replace Ginsburg in 2020, also an election year. More

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      Justice Neil Gorsuch: Americans are ‘getting whacked’ by too many laws

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      US supreme court justice Neil Gorsuch has said ordinary Americans are “getting whacked” by too many laws and regulations in a new book that underscores his skepticism of federal agencies and the power they wield.“Too little law and we’re not safe, and our liberties aren’t protected,” Gorsuch told the Associated Press in an interview in his supreme court office. “But too much law and you actually impair those same things.”Over Ruled: The Human Toll of Too Much Law is being published Tuesday by Harper, an imprint of HarperCollins Publishers. Gorsuch has received a $500,000 advance for the book, according to his annual financial disclosure reports.In the interview, Gorsuch refused to be drawn into discussions about term limits or an enforceable code of ethics for the justices, both recently proposed by Joe Biden at a time of diminished public trust in the court.Supreme court justice Elena Kagan, speaking a couple of days before the president’s proposal, separately said the court’s ethics code, adopted by the justices last November, should have a means of enforcement.But Gorsuch did talk about the importance of judicial independence. “I’m not saying that there aren’t ways to improve what we have. I’m simply saying that we’ve been given something very special. It’s the envy of the world, the United States judiciary,” he said.Gorsuch echoed that stance in an interview Sunday on Fox News, remarking: “I just say: Be careful.“The independent judiciary … What does it mean to you as an American? It means that when you’re unpopular, you can get a fair hearing.”The 56-year-old justice was the first of three supreme court nominees confirmed during Donald Trump’s presidency. Trump’s appointees have combined to entrench a conservative majority that has overturned the federal abortion rights once granted by Roe v Wade, ended affirmative action in college admissions, expanded gun rights and clipped environmental regulations aimed at climate change, as well as air and water pollution more generally.In July, the supreme court completed a term in which Gorsuch and the court’s five other conservative justices delivered sharp rebukes to the administrative state in three major cases, including the decision that overturned the 40-year-old Chevron decision that had made it more likely that courts would sustain regulations. The court’s three liberal justices dissented each time.Gorsuch also was in the majority in ruling that former presidents have broad immunity from criminal prosecution in a decision that indefinitely delayed the election interference case against Trump. What’s more, the justices made it harder to use a federal obstruction charge against people who were part of the mob that violently attacked the US Capitol on January 6 2021 in an effort to overturn Trump’s defeat by Biden in the 2020 election.Gorsuch defended the immunity ruling as necessary to prevent presidents from being hampered while in office by threats of prosecution once they leave.The court had to wrestle with an unprecedented situation, he said. “Here we have, for the first time in our history, one presidential administration bringing criminal charges against a prior president. It’s a grave question, right? Grave implications,” Gorsuch said.But in the book, co-authored by a former law clerk, Janie Nitze, Gorusch largely sets those big issues aside and turns his focus to a fisherman, a magician, Amish farmers, immigrants, a hair braider and others who risked jail time, large fines, deportation and other hardships over unyielding rules.In 18 years as a judge, including the past seven on the supreme court, Gorsuch said, “There were just so many cases that came to me in which I saw ordinary Americans, just everyday, regular people trying to go about their lives, not trying to hurt anybody or do anything wrong and just getting whacked, unexpectedly, by some legal rule they didn’t know about.”The problem, he said, is that there has been an explosion of laws and regulations, at both the federal and state levels. The sheer volume of Congress’s output for the past decade is overwhelming, he said, averaging 344 pieces of legislation totaling 2m to 3m words a year.One vignette involves John Yates, a Florida fisherman who was convicted of getting rid of some undersized grouper under a federal law originally aimed at the accounting industry and the destruction of evidence in the Enron scandal. Yates’s case went all the way to the supreme court, where he won by a single vote.“I wanted to tell the story of people whose lives were affected,” Gorsuch said.

      Guardian staff contributed. More

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      Democrat urges Justice Roberts to act over Clarence Thomas’s ‘tangled web’

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      US supreme court justice Clarence Thomas’s ties to conservative political figures is an American embarrassment, and the question is whether that is shameful enough to the country’s highest-ranking judge to do something about it, the Senate judiciary committee’s chairperson said on Sunday.“This tangled web around justice … Thomas just gets worse and worse by the day,” Illinois’s senior Democratic senator, Dick Durbin, said on CNN’s State of the Union. “I don’t know what is going to come up next. I thought I heard it all, but disclosures about his activities just embarrass me.”Durbin, who is also the majority whip in the upper congressional chamber, added: “The question is whether it embarrasses the supreme court and … chief justice [John] Roberts, [who] has the power in his hands to change this first thing tomorrow morning.”In an interview with host Jake Tapper, the four-term senator called on Roberts to implement a supreme court code of conduct “that finally means something” and requires its nine justices to subject themselves “to at least the minimal standards that apply to all other federal judges”.“This is the Roberts court,” Durbin said. “History is going to judge him by the decision he makes on this. He has the power to make the difference.”Durbin’s remarks taking aim at Thomas and Roberts come after days of controversy surrounding the relationships between some high court justices and people with business before their bench.On Thursday, ProPublica reported that Republican mega-donor Harlan Crow paid for the great-nephew of Thomas – whom the conservative justice raised as a son – to attend a private boarding school. Crow had also provided Thomas luxury travel and resort stays. And he had bought from Thomas a home where the justice’s mother still lives.Thomas did not declare any of that before siding with the supreme court’s conservative majority in major rulings, including one last year that removed the federal right to an abortion. The Guardian has also reported that Crow had business before the supreme court during his deep friendship with Thomas.Also on Thursday, the Washington Post published an investigation which found that rightwing legal activist Leonard Leo arranged for Thomas’s wife, conservative activist Ginni Thomas, to receive tens of thousands of dollars for consulting work between 2011 and 2012. Leo made it a point for Ginni Thomas’s name to be omitted from pertinent billing paperwork, and an organization which he leads has repeatedly submitted briefs that outside groups use to share insights with supreme court justices, according to the Post.Meanwhile, last month, Politico reported that Thomas’s fellow conservative justice Neil Gorsuch pocketed up to $500,000 from a property sale shortly after joining the supreme court but did not disclose that the buyer led a law firm with business before the high court.Thomas has said he was advised that he didn’t have to declare such gifts but pledged to begin following ethics guidelines. Gorsuch has not commented.skip past newsletter promotionafter newsletter promotionSome have argued that such disclosures about the relationships between supreme court justices and certain parties amount to exposed corruption. Durbin recently invited Roberts to appear in his role as supreme court chief justice before the Senate judiciary committee to address the reporting on Thomas and Gorsuch.But Roberts declined and instead simply forwarded “a statement of ethics and principles and practice to which all current members of the supreme court subscribe”.Durbin countered in a letter that the statement Roberts sent over “raises more questions than it resolves”.The senator told Tapper on Sunday that everything about the revelations around Thomas and Gorsuch as well as Roberts’s reaction “stinks”.Seemingly alluding to recent polling which showed that public confidence in the supreme court has plummeted to historic lows, Durbin said: “You shouldn’t have that sort of thing happening at the highest court in America. It just destroys the integrity of the court.” More

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      Republicans thwart Democrats’ push to stiffen supreme court ethics rules

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      Arguing that the US supreme court has “the lowest ethical standards” of a court in the country, Senate Democrats on Tuesday demanded tighter rules on the nine justices but ran into resistance from Republicans who accused them of being bitter over recent conservative rulings.Democrats had convened a hearing of the Senate judiciary committee after a series of media reports on entanglements between two of the court’s conservative justices and parties with interests in its cases. These includes Clarence Thomas’s acceptance of luxury travel and a real estate deal from Republican megadonor Harlan Crow, and Neil Gorsuch’s sale of a property to a law firm executive with business before the court. Both were interactions the two justices did not fully disclose.The committee’s Democratic chair Dick Durbin, a senator from Illinois, said: “We wouldn’t tolerate this from a city council member or an alderman. It falls short of the ethical standards we expect of any public servant in America. And yet the supreme court won’t even acknowledge it’s a problem.“Ethics cannot simply be left to the discretion of the nation’s highest court. The court should have a code of conduct with clear and enforceable rules so justices and the American people know when conduct crosses the line. The highest court in the land should not have the lowest ethical standards.”But to Republicans, the Democrats’ calls for Thomas to be investigated and for the court to accept more stringent ethics rules represent nothing more than sour grapes. Last year, the supreme court’s six conservative justices handed down decisions that upended American life by overturning the precedent established by Roe v Wade to allow states to ban abortion, expanding the ability for Americans to carry concealed weapons without a permit, and reducing the Environmental Protection Agency’s ability to regulate power plant emissions.Lindsey Graham, the top Republican on the panel, alluded to these rulings to argue Democrats were simply trying to undermine the court’s conservative majority.“This assault on justice Thomas is well beyond ethics. It is about trying to delegitimize a conservative court that was appointed through the traditional process,” Graham, a senator from South Carolina, said.Durbin had invited supreme court chief justice John Roberts to the hearing, but he declined to attend, citing the need to keep the court separate and free from congressional interference, while sending along a “statement on ethics principles and practices” signed by all of the court’s nine justices. Federal law requires judges, including supreme court justices, recuse themselves from any matter “in which his impartiality might reasonably be questioned”, but unlike other judges and federal employees, the court has no formal ethics code.Democrats say the nine highest judges in the country do not have ethics rules comparable to other judges or even many federal employees, and have introduced two pieces of legislation to impose a code of conduct and other requirements. Neither measure appears to have much of a chance in this Congress, where Republicans control the House of Representatives and could use the filibuster to block any legislation in the Senate.Before the hearing began, the Democrats’ push won an endorsement from J Michael Luttig, a former appeals court judge and noted conservative legal thinker who said Congress does have the authority to establish such standards.He wrote in a letter to the committee: “There should never come the day when the Congress of the United States is obligated to enact laws prescribing the ethical standards applicable to the non-judicial conduct and activities of the supreme court of the United States, even though it indisputably has the power under the constitution to do so, but paradoxically, does not have the power to require the court to prescribe such standards for itself.”Luttig was joined by progressive scholar Laurence Tribe, who wrote to the committee: “I regard legislation to impose ethical norms in a binding way on the justices as eminently sensible. Put simply, I see such legislation as a necessary though probably not sufficient response to the current situation.”Neither men opted to testify. Instead, Democrats heard from invited legal scholars who generally agreed that Congress had the power to implement a code of conduct on the supreme court, should they choose to do so. Experts invited by the Republican minority, meanwhile, said Congress did not have the power to impose a code of conduct on the supreme court, and downplayed the severity of the reports about the court’s ethics.Michael Mukasey, a former attorney general under George W Bush, said in the hearing, said: “It’s impossible to escape the conclusion that the public is being asked to hallucinate misconduct, so as to undermine the authority of justices who issue rulings with which the critics disagree, and thus to undermine the authority of the rulings themselves.” More

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      The US supreme court’s alleged ethics issues are worse than you probably realize | Moira Donegan

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      It was a short letter. John Roberts, chief justice of the US supreme court, was brief in his missive to Democratic senator Dick Durbin, who chairs the Senate judiciary committee. Citing “separation of powers concerns and the importance of preserving judicial independence”, Roberts declined to appear before the committee to discuss disturbing recent revelations of ethics violations at the court.Congress is meant to exert checks on judicial power – to investigate or even impeach judges who abuse their office or interpret the law in ways that violate its spirit, and to affirm that the elected branches will hold more sway over policy than the appointed one. But the chief justice’s show of indifference to congressional oversight authority reflects a new reality: that there are now effectively no checks on the power of the court – at least none that Democrats have the political will to use – and that the justices can be assured that they will face no repercussions even if they act in flagrant violation of ethical standards. It seems that they intend to.The committee summoned Roberts to testify because it appears that he’s not exactly running a tight ship. On 6 April, an investigation by ProPublica found that Justice Clarence Thomas had, over decades, accepted millions of dollars’ worth of private plane flights, “superyacht” trips and luxury vacations from the Texas billionaire and conservative megadonor Harlan Crow – and that, in alleged violation of federal ethics law, he had not disclosed almost any of it.Subsequent reporting revealed that Crow had in fact bought Thomas’s childhood home in Savannah, Georgia, where the justice’s elderly mother still lives, along with several plots on the block. After paying Thomas for the real estate, the billionaire cleared local blight, made significant renovations to the house and allowed Thomas’s mother to continue living there, rent-free.None of those transactions had been detailed on Thomas’s ethics forms, either. In addition to the soft influence Crow would have been able to buy with his extensive largesse, the billionaire’s generous gifts also seem to have created a direct conflict of interest for Justice Thomas: Crow’s firm had business before the US supreme court at least once, and Thomas did not recuse himself from the case.It is not Thomas’s first time in ethical hot water. He was famously accused of sexual harassment by multiple women, including Anita Hill, during his time in the Reagan administration as head of the employee-rights protection watchdog, the Equal Employment Opportunity Commission. He has been accused of having perjured himself in his subsequent testimony about his behavior toward Hill at his confirmation hearings.During his long tenure on the court, he has repeatedly had trouble filling out his financial disclosure forms correctly. Once, he failed to report more than half a million dollars in income that his wife, the conservative activist Ginni Thomas, received from the rightwing Heritage Foundation. He said at the time that he had misunderstood the forms. That was also his excuse regarding Harlan Crow’s largesse.Thomas claims that he was advised that he did not have to report “hospitality”. It is a loophole in the ethics code that is meant to relieve judges of having to report, say, barbecue dinners at the homes of their neighbors – not, as Thomas claims he took it to mean, luxury yacht tours of Indonesia.Although Thomas may be uniquely prolific in his alleged ethical violations, the problem isn’t unique to him. Politico revealed this week that just nine days after his confirmation to the US supreme court in April 2017, Justice Neil Gorsuch sold a log cabin in Colorado to Brian Duffy, the chief executive of the prominent law firm Greenberg Traurig. Before Gorsuch’s confirmation, the justice and the other co-owners of the home had tried for two years to sell it, without success.Since the sale, Duffy’s firm has had business before the court at least 22 times. Gorsuch did disclose the income from the sale on financial disclosure forms, but failed to mention that the buyer was a big shot at one of the country’s largest law firms who would regularly bring cases before Gorsuch at his new job.It’s certainly possible that Duffy simply liked the house, and that the convenient timing of his purchase so soon after Gorsuch’s confirmation to the court was a mere coincidence. And it seems reasonable to believe Thomas and Crow when they say that they are sincere friends, if less reasonable to believe Thomas when he claims that he misunderstood his disclosure obligations. But corruption need not be as vulgar and direct as a quid pro quo: it can be the subtle machinations of influence and sympathy that occur in these relationships, inflected both by money and by closeness, that lead the justices to see cases as they otherwise wouldn’t, or act in ways contrary to the integrity of their office and the interests of the law.skip past newsletter promotionafter newsletter promotionBad intent by the justices need not be present for the mere appearance of corruption to have a corrosive effect on the rule of law, and both Gorsuch and Thomas have allowed a quite severe appearance of corruption to attach itself to the court. Both have claimed that they are such intelligent and gifted legal minds that they should be given lifelong appointments of unparalleled power, and also that they have made innocent mistakes on legal forms that they are too dumb to understand.The claim strains credulity. What it looks like, to the American people who have to live under the laws that the supreme court shapes, is that Thomas has long been living lavishly on the dime of a rightwing billionaire who wants rightwing rulings, and that Gorsuch conveniently managed to sell a house he didn’t want at the precise moment when he became important enough to be worth bribing.The chief justice doesn’t seem very worried about this appearance of impropriety. In light of these alarming ethics concerns, Roberts’ curt rejection of the committee’s invitation to testify speaks to an evident indifference to ethical standards, or a contempt for the oversight powers of the nominally coequal branches. Ironically enough, his nonchalance has made the reality even more plain than it was before: the court will not police itself. The other branches need to show the justices their place.
      Moira Donegan is a Guardian US columnist More

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      Law firm CEO with US supreme court dealings bought property from Gorsuch

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      The US supreme court justice Neil Gorsuch made as much as $500,000 from a 2017 real estate sale, according to a new report, but did not disclose the identity of the buyer: the chief executive of a law firm with extensive business before the high court.The news represents a new headache for the chief justice, John Roberts, who Democrats want to testify over extensive media reporting about the relationship between Clarence Thomas, another conservative, and a Republican mega-donor, Harlan Crow.Gorsuch was confirmed in 2017, the first of three appointments under Donald Trump which tilted the court firmly right.He has since voted with conservative majorities in decisions including the removal of the federal right to abortion and a loosening of gun control laws.The chief executive who bought property from Gorsuch, Brian Duffy of Greenberg Traurig, told Politico, he had “never spoken” to Gorsuch. “I’ve never met him.”But news of Duffy’s $1.825m purchase of the Colorado property, of which Gorsuch was one of three co-owners and which the justice said in disclosure documents netted him between $250,001 and $500,000 after being on the market two years, followed news of Crow’s largesse to Thomas.ProPublica reported Crow’s gifts, including luxury travel and holidays, and Thomas’s failure to declare them.Amid widespread reporting about Crow’s collection of Nazi memorabilia, including paintings by Adolf Hitler, ProPublica also reported that Crow bought property from Thomas: a house in Georgia in which Thomas’s mother lives.Thomas said he was advised he did not need to declare such gifts. Crow, who also gave money to Thomas’s wife, the far-right activist Ginni Thomas, said he and his friend never discussed politics or court business.Outlets including the Guardian have shown that groups linked to Crow have had business before the court in the time of his friendship with Thomas.Calls for action against Thomas, including impeachment, are unlikely to produce results. Supreme court justices are subject to federal regulations but in practice govern themselves. But public trust in the court has reached historic lows.Politico said Duffy’s firm had been involved in “at least 22 cases before or presented to the court”, including filing amicus briefs or representing parties, while Gorsuch was on the court.“In the 12 cases where Gorsuch’s opinion is recorded,” the site said, “he sided with Greenberg Traurig clients eight times and against them four times.”Politico also noted Greenberg’s involvement in a major lawsuit over a climate change plan during Barack Obama’s presidency.Gorsuch, it said, “joined the court’s other five conservatives in agreeing with the plaintiffs – including Greenberg’s client – that the Environmental Protection Agency had overstepped its authority by regulating carbon emissions from power plants”.Gorsuch, Politico said, “did not respond to inquiries about the [property] sale, his disclosures or whether he should have reported Duffy’s identity as the purchaser”.Duffy said he did not know Gorsuch was a co-owner when he made his offer, adding: “The fact he was going to be a supreme court justice was absolutely irrelevant to the purchase.”The Democratic chair of the Senate judiciary committee, Dick Durbin, said: “We have seen a steady stream of revelations regarding supreme court justices falling short of the ethical standards expected of other federal judges and of public servants.“The need for supreme court ethics reform is clear, and if the court does not take adequate action, Congress must.”Kyle Herrig, president of the watchdog Accountable.US, said: “Without decisive action, the conservatives on the supreme court will forever tarnish its reputation in our public life.” More

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      Mitch McConnell greatly damaged US democracy with quiet, chess-like moves | Gary Gerstle

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      Mitch McConnell greatly damaged US democracy with quiet, chess-like movesGary GerstleWhile Trump’s coup attempt may have failed, McConnell’s own machinations have proven highly effective The January 6 committee has now revealed how far Donald Trump was willing to go to prevent the peaceful and lawful transfer of power from his presidency to that of Joe Biden. Yet, his deadly serious attempt to upend American democracy also had a slapdash quality to it, reflecting Trump’s own impulsive nature and his reliance on a group of schemers – Rudy Giuliani, Mike Flynn, Sidney Powell, Roger Stone and John Eastman among them – of limited ability. It is not entirely surprising that Trump’s coup failed.Another brazen GOP action, however, has succeeded – this one engineered by the Senate minority leader, Mitch McConnell, whose chess-like skills of political strategizing put to shame Trump’s powerful but limited game of bluster and bullying. The act to which I refer is McConnell’s theft of Barack Obama’s 2016 appointment to the supreme court, a radical deed that has dimmed somewhat in public consciousness even as it proved crucial to fashioning a rightwing supreme court willing to overturn Roe v Wade and to destabilize American politics and American democracy in the process.This summer may be one of the most consequential in US democracy | Thomas ZimmerRead moreMcConnell is widely considered to be a cynic about politics, more interested in maintaining and holding power than in advancing a particular agenda. This is true up to a point. But it is equally true that McConnell has believed, for decades, that the federal government had grown too large and too strong, that power had to be returned to private enterprise on the one hand and the individual states on the other, and that the legislative process in Washington could not be trusted to accomplish those aims. Hence the critical role of the federal courts: the federal judiciary, if sufficiently populated by conservative jurists, could constrain and dismantle the power of the federal government in ways in which Congress never would. It was fine, in McConnell’s eyes, for Congress to be paralyzed and ineffectual on most domestic issues, as long as the GOP, when in power, stacked the federal judiciary and the supreme court with conservative judges and justices. Thus, across Trump’s presidency, McConnell pushed 175 district court appointments and 54 court of appeals appointments through the congressional confirmation process, far exceeding in numbers what Obama had managed during the second term of his presidency.The supreme court, of course, was the biggest prize of all. The GOP had failed for 30 years to fashion a court to its liking, largely, it believed, because too many of its appointees – Sandra Day O’Connor, David Souter, Anthony Kennedy, and even John Roberts – had gone “rogue” on key issues: gay rights, gay marriage, affirmative action, Obamacare and, most of all, abortion. McConnell was worried that the GOP would fail again, this time under his watch as majority leader. Hence his willingness to steal an appointment that by historical practice and precedent belonged to Obama.The tale of McConnell’s steal begins in February 2016, when Associate Justice Antonin Scalia, the lion of the judicial right, suddenly and unexpectedly died. Obama had just begun the last year of his presidency, and McConnell was entering his second year as Senate majority leader. McConnell immediately declared that he would hold no hearings on a new supreme court justice, regardless of whom Obama nominated. McConnell’s ostensible justification: it was inappropriate, he declared, for a president on his way out of office to exercise so profound an influence on America’s political future. Let the next president, to be elected in November 2016, decide who the nominee should be. That way forward would, McConnell argued, be a way of letting “the people”, through their choice of president, shape the supreme court’s future.Obama nominated a centrist (and distinguished) jurist, Merrick Garland, in the hopes that it might soften McConnell’s and the GOP’s opposition. McConnell would not budge. He behaved as though no nominee had been put forward, allowing both Garland and Obama to twist in the wind across eight long months. We know the rest of the story: Trump won in November and nominated Neil Gorsuch to fill Scalia’s seat. Gorsuch was an arch-conservative jurist vetted by the Federalist Society. Knowing that he would be unable to secure the 60 votes necessary to bring closure to debate on the nominee, McConnell blew up the filibuster requirement for supreme court justices. Gorsuch was then confirmed (54-45) on the Senate floor.Technically, McConnell had violated no laws. The Senate, by simple majority vote, has the authority to remove the filibuster from virtually any issue at any time. With regard to supreme court nominations, the constitution simply states that the president has the power to nominate justices and that the Senate’s advice and consent are required for confirmation. Still, McConnell’s refusal to authorize any action on Garland broke with 150 years of senatorial precedent and practice. The Senate had rejected nominees in the past, but only after debate and a vote. Some who were told they had little chance of winning such a vote had voluntarily withdrawn their names. A few had seen their cases deferred for a few months. But the last time a nominee was made to suffer Garland’s fate – consigned indefinitely to purgatory – was 1866. And that ancient case had a plausible justification that the Garland case did not: the nomination had come from a president – Andrew Johnson – on his way to impeachment and possible removal from office.McConnell’s action was a calculated gamble. In early 2016, he did not know who or how strong the Republican nominee would be. But he regarded Hillary Clinton, the likely Democratic nominee, as vulnerable and beatable. And he expected his defiance of Obama on a supreme court nomination to fire up the GOP base. The stakes of the battle made the substantial risk worthwhile. McConnell distrusted Chief Justice Roberts because of the latter’s critical role in preserving Obama’s Affordable Care Act – another example, in the majority leader’s eyes, of a GOP-nominated justice going “rogue”. A Garland appointment might well have strengthened the centrism of the court, which is where Roberts wanted the power of his court to lie. McConnell wanted a court that would resist that drift, even if it meant breaking with a time-honored senatorial precedent. The end – a “truly” conservative court – justified the means.Imagine, for a moment, that McConnell in 2016 had followed precedent and held hearings for and a vote on Garland. The moderate Garland might well have been approved and become Scalia’s replacement. Let’s presume, for the sake of argument, that the next two appointments went as they did: Brett Kavanaugh replacing the retiring Anthony Kennedy in 2019 and Amy Coney Barrett replacing Ruth Bader Ginsburg when the latter died in 2020. Had this scenario prevailed, the court would have entered its 2021-2022 term with three progressives (Stephen Breyer, Elena Kagan, and Sonia Sotomayor), one moderate (Garland), and five conservatives (Clarence Thomas, Samuel Alito, Roberts, Kavanaugh and Barrett).This hypothetical court may well have declined to overturn Roe v Wade. Two of the votes that Samuel Alito needed to assemble his majority in the 2022 case repudiating Roe (Dobbs v Jackson Women’s Health Organization) were weak ones: Roberts and Kavanaugh. Roberts astonishingly admitted in his concurrent opinion that he thought it wrong to use Dobbs to overturn Roe, even as he was voting to do so. Kavanaugh, meanwhile, laced his own concurrent opinion with the anguish of someone deeply troubled by the affirmative vote for a Roe reversal that he, too, was casting.What if Garland was sitting on this court rather than Gorsuch? Roberts, still in command of this court, may well have cobbled together a coalition to preserve Roe. He might have pulled a conflicted Kavanaugh to his side, and he might have worked out a deal with the court’s progressives (and probably Garland as well) similar in spirit to the one that Sandra Day O’Connor had engineered in Planned Parenthood v Casey (1992): jurisprudentially messy but workable as a compromise between America’s warring tribes. Were Garland sitting on this court, in other words, women in America today would still have a constitutionally protected right to reproductive freedom.McConnell could not have foreseen in 2016 the particular way in which a majority of justices would coalesce in 2022 to overturn Roe. But his actions then were designed to lay the foundation for this sort of outcome. He resolved long ago that he would allow no principle to stand in the way of his pursuit of a rightwing court. Thus, in October 2020, he did not hesitate to abandon the arguments he made in the Garland case to jam through the Senate Amy Coney Barrett’s confirmation, even though Trump was much closer to the end of his presidential term than Obama had been to his in 2016. The ends – a rightwing court –justified the means.McConnell’s machinations broke no laws. His 2016 supreme court steal, however, upended a century and a half of accepted senatorial practice. The price for the country has been high: damage to the court’s legitimacy, deepening cynicism about Washington politics, and a growing conviction that America’s ailing democratic system can’t be fixed.
      Gary Gerstle is Mellon professor of American history emeritus at Cambridge and a Guardian US columnist. His new book, The Rise and Fall of the Neoliberal Order: America and the World in the Free Market Era, will be published in April
      TopicsUS newsOpinionUS politicsUS supreme courtMerrick GarlandRuth Bader GinsburgAmy Coney BarrettBrett KavanaughcommentReuse this content More

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      John Roberts calls Schumer’s remarks on justices ‘dangerous’ in rare rebuke

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      Schumer spoke about Neil Gorsuch and Brett Kavanaugh outside court while high-profile abortion case was being argued The chief justice of the US supreme court has taken the unusual step of criticizing as “inappropriate” and “dangerous” comments that the Senate Democratic leader, Chuck Schumer, made about conservative justices Neil Gorsuch and Brett Kavanaugh. Related: The […] More