Justice Amy Coney Barrett showed a tin ear in choosing when and where to declare that the Supreme Court “is not comprised of a bunch of partisan hacks.” She was speaking in the presence of Senate Republican Leader Mitch McConnell, at a university facility in Kentucky that bears his name.
No one in American history has done more than McConnell to make the court look political. He did that by keeping the late Justice Antonin Scalia’s seat open for nearly a year until a Republican president could be elected, and by his haste in confirming Barrett’s nomination barely a month after Ruth Bader Ginsburg died and a mere eight days before the presidential election.
Ginsburg’s well-earned eulogies were tinged by complaints that, given her age and cancer history, she should have resigned while a Democratic president, Barack Obama, was still in office.
There’s pressure now on Justice Stephen Breyer, at 83 the eldest of the three remaining liberals (and Democratic appointees), to retire before the 2022 election that might make McConnell the Senate majority leader again with two years remaining in President Joe Biden’s term.
Breyer has been coy about when he might retire from the court, saying that he doesn’t intend to die there. But he cannot possibly harbor any illusions about what McConnell would do in that event. He should give serious thought to insuring the court against more McConnell machinations.
Term limits, Breyer quipped recently, “would make life easier for me.”
Although there aren’t going to be term limits for the court in the near future, the issue is acquiring increasing interest, especially among members of the 36-member commission that Biden appointed to consider “the merits and legality of particular reform proposals.”
The worst of those proposals is to simply expand the court. Regrettably, court-packing has cropped up locally in the special election campaign to replace the late U.S. Rep. Alcee Hastings. It could appeal to such a liberal district, but it’s hard to suppose even a Democratic Congress agreeing to set that example for a future Republican Congress.
Moreover, it’s a distraction from what should be done, on an urgent basis, to insulate the court from politics.
As Breyer said in a Harvard Law School speech recently, the court depends on “trust that the court is guided by legal principle, not politics.” Like Barrett, he asserts that it is.