Editorial

The ruling Republicans appear poised to have won their struggle to install a compliant conservative majority of justices on the United States Supreme Court.

They are aiming to create a court that would overturn U.S. abortion law, repeal the Affordable Care Act health-insurance legislation established by Democratic former president Barack Obama, and — perhaps in the immediate short term — tilt any election disputes in the Republicans’ favour.

The court appointment may not, however, be the end of the story.

The Republicans unmistakably have the votes and the legal authority to appoint Amy Coney Barrett, an appeal court judge of limited judicial experience but unambiguous conservative credentials, to fill the vacancy created by the Sept. 18 death of liberal Justice Ruth Bader Ginsburg.

The unseemly haste of Justice Barrett’s appointment in the final weeks of Donald Trump’s presidential term, however, painted her — perhaps unfairly — as a pawn of party manoeuvring.

Appointed for life at age 48, Justice Barrett may have many years of Supreme Court service before her. If she makes it to age 87 like Justice Ginsburg, she might continue on the court through most of the next 10 presidential terms.

Republicans hope — and Democrats fear — that she will continue obstructing Democratic party plans all that time alongside the other conservative justices.

Demetrius Freeman / Washington Post Files </p><p>Judge Amy Coney Barrett during the Senate Judiciary Committee hearing on Oct. 14 in Washington, D.C.</p>

Demetrius Freeman / Washington Post Files

Judge Amy Coney Barrett during the Senate Judiciary Committee hearing on Oct. 14 in Washington, D.C.

Current polling suggests Democrats stand a good chance of winning the presidency and majorities in both houses of Congress in the Nov. 3 elections. Democratic presidential candidate Joe Biden proposes to create an expert commission of judges and lawyers to come up with measures that would rescue the Supreme Court and the judiciary from the noxious effects of partisan politics.

Any reforms he attempts are likely to touch off a turbulent power struggle among the executive, legislative and judicial branches of the United States government.

The U.S. has sailed through these waters before. The Supreme Court in 1935 and 1936 shot down key elements of president Franklin Delano Roosevelt’s New Deal program, which was aimed at pulling the U.S. economy out of the Great Depression.

The conservative majority on the court found he was trying to expand federal government power beyond what the Constitution allowed.

After his landslide win in the 1936 election, Mr. Roosevelt brought forth a plan to appoint additional justices. A fierce political battle ensued, but the court in the meantime changed course and started approving New Deal programs they had formerly vetoed.

The reasons for the switch were never transparently clear, but it seemed that the justices, or at least one of them, were impressed by the election result and saw some kind of writing on the wall.

Supreme Court justices, or some of them, pretend to insulate themselves from the political currents in the country. They can hardly help, however, noticing what is afoot beyond the doors of their courtroom.

Supreme Court justices, or some of them, pretend to insulate themselves from the political currents in the country. They can hardly help, however, noticing what is afoot beyond the doors of their courtroom.

Because the court in 1937 bowed to the popular will expressed in the 1936 election, Mr. Roosevelt abandoned his plan to expand the court and peace was restored among the branches of government.

Mr. Roosevelt won in 1936 with 60.8 per cent of the popular vote and 523 electoral college votes, against 36.5 per cent and eight electoral votes for Republican Alf Landon.

Mr. Biden seems unlikely to achieve a landslide on that scale this year.

Even so, a decisive Republican defeat might encourage Supreme Court justices to wonder how loyally they want to serve a party and a program firmly rejected by the country.