President Joe Biden’s agenda has stalled out in Congress. He’s facing low approval ratings and a potential Republican wave in November’s midterm election. The announcement of Supreme Court Justice Stephen Breyer’s retirement was seen as a chance to reset the narrative, in Washington-speak, and give party activists some reason for enthusiasm in what could be a grueling and demoralizing year. In reality, nominating a new justice, even one in the mold of the bench’s most liberal member, Sonia Sotomayor, may be little more than placing a fig leaf over a fundamentally anti-democratic institution.
Biden made a promise to appoint a Black woman as Supreme Court justice on the campaign trail. He’s now poised to fulfill that promise, and if he’s successful it will mark the first time that a Black woman will sit on the bench in the court’s history. The response has been completely predictable, with conservatives using racist tropes to discredit a nominee before she’s even been named, right-wing Democrat Rep. Jim Clyburn pushingan anti-labor candidate, Rep. Alexandria Ocasio Cortez arguingWhile it is important to consider identity when deciding who should sit at the table, it is not sufficient.
The most striking thing about Biden’s lack of obstruction from the senators who have, up until now, blocked his most progressive agenda items is perhaps the fact that they are not obstructing him. Senators Joe Manchin (D-West Virginia) and Kyrsten Sinema (D-Arizona) have served as alternating saboteurs of Biden’s social spending package, and the party’s voting rights and election reform agendas. When it comes to the court pick, however, they’ve fallen in line, at least for now.
Manchin recently said he was “anxious” to confirm Breyer’s replacement, and that he was openVote for a candidate that is more liberal than the outgoing justice. Sinema has been characteristically incoherent about her position, saying only in a statement that she was looking forward to “thoughtfully examining the nominee.” Neither Manchin nor Sinema have voted against any of Biden’s lower court nominees, and the feeling within the party is that they’ll ultimately support whoever Biden puts forward.
There are a few theories to account for Manchin and Sinema’s apparent lack of obstructionism. It could be that a Supreme Court nomination is so important that intra-party conflicts are able to be put on the side. In Sinema’s case, it could be that she fears opposing Biden’s pick could add fuel to the growing campaign to primary her in 2024.
It is more likely that each of them knows two things about Supreme Court. First, and most obviously, that the composition of the current court won’t fundamentally change with Justice Breyer’s retirement. It will be a 6-3 conservative court and will likely stay that way for many more years. Second, is that the Supreme Court — like the filibuster in the Senate — is a deeply reactionaryAn institution that has almost always existed in an attempt to hinder the expansion of democracy the United States. From pro-slavery decisions such as Dred Scott v. Sandford; to the racist “insular cases,” which created second-class status for people in U.S. territories and colonies; to opposition to the New Deal; to the post-1970s era, the court has been reliablyon the side for white supremacy and capitalist interests
Unfortunately, liberals tend to have a backwards view on the court and its history. Liberals are most familiar with the Warren Court, which was established in 1953 by Earl Warren as chief justice. It is well-known for its groundbreaking rulings, such as ending school segregation. Brown v. Board of EducationPublicly providing criminal representation is mandatory Gideon v. WainwrightEnsure privacy and respect for your privacy Griswold v. ConnecticutThis is a critical pillar in securing the right to abortion rights less that a decade later. Roe v. Wade.
Warren at the head of the Supreme Court, however, was only able to ensure that the Court was liberal during a brief periodFrom 1962 to 1969. The court has been dominated by conservatives since 1962. Since then, the court has moved to right, a trend that was only intensified under former President Donald Trump. Despite this undeniable trend, liberals continue to imagine the court’s role as a protector of minority rights, rather than a champion of big business and anti-majoritarian rule.
The court’s liberal opinion has declined since the Trump years. It now stands at 46 percent approval rating. Yet, Chief Justice John Roberts, an arch-conservative, had a 55% rating approvalHis approval rating among Democrats was only 2 points lower than his approval among Republicans in December 2021. The Supreme Court as a unit was given an approval rating by Democrats approvalAlthough the rating was at 58 percent in September 2020, it dropped 8 points the year after that. Liberal support for court seems to be tied to the ideological balance of court, and not the institution itself.
Liberals are most proud of their uncritical hero worship, as demonstrated by the uncritical hero worship displayed by the late Justice Ruth Bader Ginsberg. Specifically, that the court is, despite all its faults and sometimes progressive, a necessary, natural, and often beneficial institution in U.S. society. This explains why mainstream liberals are not interested in fundamentally changing America’s court system, whether by adding seats or imposing term limits. ignoringThese rulings are abolishingIt’s all there.
For all the signals that Democrats will probably be able to muster 50 votes for Biden’s choice, the actual confirmation is at least a month away. New Mexico Senator Ben Ray Lujan was hospitalized this week after suffering a severe stroke. Early reports suggest that it was mild. Lujan should be able go home. returnYou can expect to be at work in between four and six weeks.
There’s also still time for Republican opposition to eat away at either Manchin or Sinema. At the moment, Senate Minority leader Mitch McConnell is reportedly trying to play down an early start. opposition, believing they don’t have the votes to stop whoever Biden picks.
The rest of the party, however, isn’t following McConnell’s cue. Potential Republican presidential candidate, Sen. Ted Cruz called Biden’s commitment to nominating a Black woman “offensive.” Sen. Josh Hawley, another presidential hopeful, said it was an example of Biden’s “hard woke left” ideology, and accused the administration of being “race-obsessed, gender-obsessed in terms of trying to deconstruct genders.” Arguably the chamber’s most open bigot, Louisiana Sen. John Kennedy, said he wanted a court pick “who knows a law book from a J. Crew catalog,” and who wouldn’t “try to rewrite the Constitution every other Thursday to try to advance a ‘woke agenda.’” Mississippi Sen. Roger Wicker said Biden’s nominee would be a “beneficiary” of “affirmative action.”
It remains to see if Manchin would support a court nominee who is more liberal than himself. He’s previously put offers on the table, only to rescindThey were added to the list as negotiations progressed. It remains to be seen where Sinema stands. If Biden chooses D.C. Circuit Court Judge Ketanji Brown Jackson from the Circuit Court, who was recently issuedEither senator could have an objection to federal unions if they make a major ruling in their favor. But if they both go along with Biden’s pick even if she has a history of liberal opinions, that tells us how comfortable conservatives in both parties are with the Supreme Court right now.