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.
On the campaign trail, Biden pledged to appoint a Black woman to the Supreme Court, should he get the chance. 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 pushing an anti-labor candidate, and Rep. Alexandria Ocasio-Cortez arguing that considering identity is necessary but not sufficient to evaluate who should sit on the bench.
Perhaps most notable, though, is the lack of obstruction Biden is getting from the two senators who have, until now, thwarted his most progressive agenda items. 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 open to voting for a candidate more liberal than the outgoing justice. Sinema has been characteristically obtuse 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 nominee is such a momentous occasion that intra-party conflicts can be put to 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.
More likely is that each of them understands two things about the Supreme Court. First, and most obviously, that the composition of the current court won’t fundamentally change with Justice Breyer’s retirement. It will overwhelmingly still be a 6-3 conservative court, and is likely to stay that way for years. Second, is that the Supreme Court — like the filibuster in the Senate — is a deeply reactionary institution that has almost always existed to thwart, rather than further, the expansion of democracy in the United States. From pro-slavery decisions like 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 reliably on the side of white supremacy and the interests of capital.
Unfortunately, most liberals have a completely backwards view of the court and its history. The famous Warren Court, which began in 1953 with the elevation of Earl Warren to chief justice, looms large in the minds of liberals for its groundbreaking rulings, including ending formal school segregation in Brown v. Board of Education, mandating publicly provided criminal representation in Gideon v. Wainwright, and ensuring a right to privacy Griswold v. Connecticut, a crucial pillar in securing abortion rights less than a decade later under Roe v. Wade.
But even with Warren at the head, the Supreme Court was only reliably liberal during a brief period from 1962 to 1969. Otherwise, the court has consistently been dominated by conservatives. Since then, the court has consistently moved to the right, a dynamic that only accelerated 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.
Liberal opinion of the court did decline by the end of the Trump years, now standing at a 46 percent approval rating. Still, arch-conservative Chief Justice John Roberts had a 55 percent approval rating among Democrats in December 2021, only 2 points shy of his approval among Republicans. Democrats gave the Supreme Court as a whole an approval rating of 58 percent as late as September 2020, although that dipped 8 points the following year. Support for the court from liberals seems to be very closely tied to the ideological balance of the court, rather than the court as an institution.
The uncritical hero worship of the late Justice Ruth Bader Ginsberg is just the most obvious manifestation of a core belief among liberals. Namely, that the court, for all its faults, is a necessary, natural and often progressive institution in U.S. life. That also helps to explain why there is approximately zero interest from mainstream liberals in fundamentally changing the court, either by adding seats, instituting term limits, ignoring its rulings or abolishing it altogether.
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 Sen. Ben Ray Lujan, a Democrat, was hospitalized this week after suffering a stroke. Early reporting says it was mild, and that Lujan should be able to return to work in four to six weeks.
There’s also still time for Republican opposition to eat away at either Manchin or Sinema. For the moment, Senate Minority Leader Mitch McConnell and his leadership team are reportedly trying to play down early 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.”
Whether Manchin would actually support a court nominee significantly more liberal than him remains to be seen. He’s previously put offers on the table, only to rescind them as negotiations progressed. Where Sinema stands also remains to be seen. If Biden chooses D.C. Circuit Court Judge Ketanji Brown Jackson, who recently issued a major ruling in favor of federal unions, either senator could discover a previously unknown objection to them. 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.
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