Findings, music, and occasional reflections by Paul Woodward

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We were clerks at the Supreme Court. Its legitimacy is now in question

Jamie Crooks and Samir Deger-Sen write:

The current court is, despite occasional hand-wringing on the right over a decision or two, the most conservative this nation has had in nearly a century. Yet each time it has delivered significant conservative victories — such as Citizens United, which struck down key campaign finance limits, written by our former boss in 2010 — liberals accepted the outcome as the law of the land.

But it is wrong to think that such acquiescence is guaranteed. Just consider calls among Democrats to increase the size of the court if they win the election.

Now we face a situation that Democrats may understandably find near impossible to swallow: a Supreme Court vacancy being filled the week before a presidential election, by a minority-elected president facing an improbable re-election and a Senate that denied President Obama (who was popularly elected twice) the right to fill a seat in an almost identical situation.

We’re liberals. But we’re also institutionalists. We don’t urge postponing Judge Barrett’s confirmation because of her qualifications or originalist philosophy, and we don’t question the sincerity of her promise to approach each case impartially. Our concerns run deeper — that regardless of how or why Justice Barrett would vote on the momentous issues that would come before her, the court’s decisions won’t be accepted. [Continue reading…]

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