After Ruth Bader Ginsburg’s death in September, liberals spent seven weeks before the presidential election discussing the merits of Supreme Court reform. Should Democrats respond to Amy Coney Barrett’s confirmation—and the GOP’s four-year campaign to reshape the federal courts—by adding more seats to the nation’s highest court? Should they adopt extraordinary measures like jurisdiction stripping to limit the conservative justices’ influence? In some ways, it was one of the most prominent policy debates of the general election.
Then came Election Day. While Joe Biden managed to capture the presidency, Democrats saw their majority in the House of Representatives whittled down to a handful of seats. Democratic challengers toppled incumbent GOP senators in Arizona and Colorado but failed to secure toss-up seats in other states. Control of the Senate now hinges on two runoff races in Georgia in January, which Democrats would need to win to get a narrow 50–50 majority with Vice President-elect Kamala Harris as the tie-breaker.
Even if that happens, however, court reform is effectively dead for the foreseeable future. Democrats would have had an uphill battle to pack the Supreme Court even with a substantial majority in the House and a few extra seats in the Senate; the current margins will make it impossible even if they secure control of the Senate.
The question now isn’t what Biden and his administration will do about the courts, but rather what the Supreme Court will do about the Biden administration over the next few years.
First, Barrett’s confirmation means that Chief Justice John Roberts’s brief tenure as the court’s median vote is over. He fell into that role after the retirement of Anthony Kennedy in 2018. While liberals have no special affection for the author of Shelby County v. Holder, Roberts displayed a tendency to guide cases in ways that would avoid undermining the court’s public stature. In 2020 alone, it was Roberts who cast the deciding vote alongside the court’s four liberals in high-profile cases involving abortion rights and undocumented immigrants that preserved an Obama-era status quo. He dealt a major blow to Trump’s efforts to keep his financial records away from investigators. And he joined Justice Neil Gorsuch’s majority ruling that shielded gay and transgender Americans from workplace discrimination under federal law.
With Roberts displaced, it’s unclear which of the conservative justices will take his place as the Supreme Court’s figurative fulcrum. Indeed, it’s more likely that different justices will play that role in different areas of the law. Gorsuch might tack toward the liberal wing in Fourth Amendment cases from time to time, while Justice Brett Kavanaugh may diverge from his conservative colleagues in cases involving Sixth Amendment rights and racial discrimination in jury selection. It will be at least a year before court observers can discern where the court’s relative center now lies; what matters now is that this center will be substantially further to the right than it has been in recent decades.
Either way, the conservatives are in control of the high court for at least a generation, if not longer. Some proponents of court-packing suggest that the mere threat of adding additional seats to the Supreme Court could well serve as a deterrent of sorts against the Supreme Court’s six-justice conservative majority—a way to pressure the court from pursuing sharp, sudden changes in American law. This theory shall, for the time being, go untested; voters have chosen unilateral disarmament. Without the threat of court-packing, we will soon find out if the Supreme Court pursues the long-sought goals of the conservative legal movement in an unconstrained way.
Foremost among them is the demolition of abortion rights. There has been an ongoing debate in some legal circles about whether the conservative justices would try to overturn Roe v. Wade and Planned Parenthood v. Casey outright, or if they would avoid the potential blowback by simply ruling in favor of state-level restrictions on abortion until Roe and Casey offered virtually no protections. With Barrett’s ascension, the odds that the court will have the votes to overturn Roe and Casey altogether have jumped substantially.
On other social issues, the court may also move quickly to the right. While the court doesn’t appear to have the appetite to overturn Obergefell v. Hodges, the landmark 2015 ruling that guaranteed marriage equality nationwide, Justices Clarence Thomas and Samuel Alito recently wrote about the possibility of narrowing the decision’s impact through religious freedom cases. (Similar litigation campaigns could blunt the impact of Bostock v. Clayton County, the LGBTQ workplace-discrimination case earlier this year.) Barrett is also likely to join the court’s other conservatives in voting to take up major Second Amendment cases, raising the likelihood that the court will push constitutional law in another major political issue further to the right.
And then there is how the court handles the Biden administration itself. Biden will be the first Democratic president in decades to enter the White House without Democratic control of the House and the Senate, curbing his ability to implement key parts of his agenda. Unless his predictions about a post-Trump epiphany among Republicans prove true, Biden may find himself reliant on executive orders and regulatory changes to carry out Democratic policy goals on immigration, health care, and climate change.
Those efforts would be met with legal challenges no matter the Supreme Court’s makeup. But the court’s bolstered conservative bloc makes it an even more fraught proposition than for his former running mate Barack Obama, or even for Donald Trump. With six votes, legal campaigns by conservatives to undermine what they call the “administrative state”—the medley of federal departments and agencies with regulatory powers—may only intensify. The years ahead could see major Supreme Court rulings that give courts greater leeway to review federal regulations, limit the government’s power to make sweeping climate change rules, and even rule that Congress delegated too much of its own power in executive branch agencies.
All of this is to say that if the court’s conservative majority wanted to move fast and break things, they would have few practical checks on their ability to do so. In one sense, it would be hard to blame them. After all, the conservative legal movement spent a half-century working toward a Supreme Court that would engrave its worldview into constitutional law. But there are also other considerations at play. Many Americans are more familiar with a more conciliatory version of the Supreme Court than what could lie ahead. Under Sandra Day O’Connor and Anthony Kennedy, the court drifted rightward while leaving the status quo intact on abortion rights and other major social issues.
If the justices wanted it, the Supreme Court could act as a force for American social and political cohesion instead of a factor in its destabilization. It could avoid groundbreaking rulings on the nation’s cultural fault lines, at least for a few years, and take a wait-and-see approach to a president who is calling for reconciliation instead of revanchism. To do otherwise would risk the prospect of outraged Democrats capturing the Senate in 2022 on a platform of reining in a renegade Supreme Court, and the court-packing debate starting anew. I am skeptical that the court will show this level of foresight over the next few years. But it never hurts to hope.
