Well, we all know this. Otherwise, the right-wing wouldn't have been working so hard to get their judges on the courts. I have been wondering if the conservative supreme court has been holding back on making decisions they know would make people mad until after the election, to avoid hurting republican politicians.
I suggest reading the whole article. It's lengthy, but understandable.
https://news.harvard.edu/gazette/story/2020/10/legal-scholar-warns-of-potential-supreme-court-changes/
Liz Mineo Harvard Staff Writer
October 15, 2020
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GAZETTE: How concerned are you about the nomination of Judge Amy Coney Barrett to the Supreme Court?
KLARMAN: I’m very concerned, but it has nothing to do with her personally. Any nomination made by President Trump, or indeed any other Republican president, would shift the Supreme Court significantly to the right. It’s actually important to emphasize this, because while I believe Trump himself is a threat to democracy in many different ways, whom he appoints is likely to be no different from whom Mitt Romney or John McCain would have appointed to the Supreme Court.
I’m concerned because Judge Barrett has given speeches suggesting that she might defer less to precedent than Justice Antonin Scalia, her mentor. Justice Scalia was famous for saying he was a textualist, but he wasn’t crazy. I assume that Barrett would be at least as willing as Scalia to overturn precedent, and maybe more so.
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KLARMAN: The difference most immediately is that Chief Justice John Roberts will no longer be the swing vote. Chief Justice Roberts provided a fifth vote with the liberals to uphold the Affordable Care Act in 2012, to strike down the census question on citizenship in 2019, to uphold DACA [Deferred Action for Childhood Arrivals], and to strike down a Louisiana abortion law last term. Now Roberts will, in a sense, become irrelevant. Justice Brett Kavanaugh will probably be the swing justice once Amy Barrett joins the court. But this was already the most conservative court in almost 100 years.
GAZETTE: You have said there has been a conservative dominance in the Supreme Court for the last 50 years. How do you explain that?
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Liberals have not controlled the Supreme Court for 50 years. The last time there was a Democratic and a liberal majority was in 1969, when Chief Justice Earl Warren retired, and Justice Abe Fortas was forced off the court. Secondly, the court is not center-right. This is clearly the most conservative court since the 1930s, when the court gutted the New Deal. Thirdly, this is not a center-right country. Democrats, after Nov. 3, will almost certainly have won the popular vote in seven of the last eight presidential elections. In 2018, Democratic Senate candidates won 18 million more votes than Republican Senate candidates, but Republicans nonetheless control the Senate with a majority of 53 to 47.
There are all sorts of structural biases in the American political system, which makes possible a right-wing court’s governing a center-left country. One of the reasons for that was Sen. Mitch McConnell’s stealing Justice Scalia’s seat from President Barack Obama in 2016. The vagaries of the Electoral College are another big reason. President George W. Bush got two appointments. President Trump will have made three appointments after the Barrett nomination is confirmed by the Senate, and neither of those presidents won the popular vote. That’s five appointments to the Supreme Court that Democrats were deprived of because of the Electoral College system, which no longer has any sound justification. And then there’s the malapportionment of the Senate. Justice Clarence Thomas, Justice Kavanaugh, and Justice Neil Gorsuch were all confirmed by narrow Senate majorities. If you were to reapportion the Senate based on population, then those three justices’ confirmations would have been defeated by the Senate. The same is likely to be true in the Senate’s confirmation of Judge Barrett. When you add the malapportionment of the Senate to the vagaries of the Electoral College and the theft of Scalia’s seat, you see why Republicans have dominated the Supreme Court and are about to dominate it even further.
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GAZETTE: What is the role that politics plays in the Supreme Court decisions?
KLARMAN: There are three ways of thinking about “politics.” First, politics can be the judges’ own values. If you’re a woman, like Justice Sandra Day O’Connor, it’s not surprising that you’d be more liberal on issues of gender equality than on issues of federalism. If you’re a Jew, like Felix Frankfurter, it’s not surprising that you’d have a stronger view about the separation of church and state. A second way of thinking about “politics” is as political pressure applied to the court. The justices are not oblivious to the fact that there are limits to what they can get away with politically. One reason that Chief Justice Roberts voted with the liberals in the Affordable Care Act case in 2012 or the census case in 2019 is that he understands that the court has been rendering so many rulings favorable to conservatives, and it’s possible that progressives are about to win a massive political landslide in 2020, and there’s going to be some sort of recompense or retaliation. This is analogous to the switch in 1937, where the court backed off from striking down economic regulation in the face of Roosevelt’s court-packing plan. A third way in which politics influences constitutional decision-making is that the justices reflect the larger social mores of their time. Justices are always a product of their times.
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GAZETTE: Why do politicians, both liberals and conservatives, strive to have dominance in the court if their decisions in the end will follow public opinion or the politics of the time?
KLARMAN: First of all, when we think about the Supreme Court, we tend to think about big constitutional cases like Roe v. Wade or Obergefell, but there are lower-profile cases that are worth literally billions of dollars, which explains why Senate Majority Leader McConnell has made packing federal courts with conservatives his life’s mission and why right-wing billionaires like Charles and David Koch have been willing to invest hundreds of millions of dollars in every electoral cycle over the last decade to elect Republicans and appoint Republican justices. This conservative Supreme Court has decimated class-action litigation, which costs corporations that have misbehaved billions of dollars; it has cut back on antitrust enforcement and has severely limited punitive damages awards. The Trump administration has gutted environmental regulation, which is a large part of the reason why the Koch brothers and others have invested so much money in electing Republican politicians. This is a Chamber of Commerce Court above all things. On social and cultural issues, the liberals still sometimes win, but on the Chamber of Commerce issues, which are the issues that matter to McConnell and right-wing billionaires, this court has been more solidly in their camp than any other court in history.
There is a second category of cases that I would call cases dealing with democracy. The Republican Supreme Court upheld voter-suppression laws in the form of voter ID laws and voter purges. The Republican justices rejected challenges to partisan gerrymandering in 2019, and they struck down a key provision of the Voting Rights Act in 2013. They’ve gutted campaign-finance regulation, and in 2000 they elected a Republican president in Bush v. Gore. Those are tremendous benefits to the Republican Party from having conservative justices. President Trump is quite candid about this; he has said that the reason Amy Barrett must be confirmed to the court quickly is because he needs a ninth justice to rule on contested ballots in the November election.
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