“How Amy Coney Barrett Would Reshape the Court — And the Country”

Politico asked more than two dozen “legal experts” their views on this question. Here’s my contribution:

The authority and legitimacy of public institutions takes decades to build up — but can unravel far more quickly. We have been in the midst of a blood feud over the Supreme Court for some years now, which is increasingly likely to cause great damage to an institution the country needs. Like in all blood feuds, each side has its own story of how it all began, which goes back nearly 40 years: You blocked Bork. You denied Garland a hearing. We had to get rid of the filibuster for lower court judges. We had to get rid of it for the Supreme Court. Overwhelmed by the politics of the moment when in power, neither side can stop, making it inevitable that when the worm turns, the other side will up the ante all the more.

To talk about what Amy Coney Barrett would mean for this issue or that issue is to miss the true historical significance of this appointment and what it will mean for the court. If Democrats capture the Senate and White House this fall, the pressures to pack the court will become more formidable than at any time since Franklin D. Roosevelt’s disastrous 1937 attempt (the political backlash against that effort brought about the end of the New Deal). That effort might press to add four new justices, to create a 13-member court with seven Democratic appointees. As soon as the Republicans regain power, they will then take their turn at refashioning the court to serve their aims.

A bespoke court, custom designed and redesigned to serve the interests of the party in power, would lose much of the institutional capital it has built up over two centuries. Perhaps Judge Barrett’s nomination will eventually lead the warring tribes to forge a treaty that reduces the stakes in these appointments (through mechanisms scholars have discussed for years). Or perhaps the stakes in Supreme Court appointments will diminish because one political party gains complete control of government for decades, thus making the court less relevant, as Republicans did after the Civil War and Democrats did during the New Deal. Of course, each side’s firm belief that it is (always) on the cusp of doing that is part of what propels the feud forward.

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