BIDEN HIS TIME?
There are no easy ways to dissolve the toxic cloud that has descended over our judicial debates. I’m interested in the commission’s work, but I doubt it’ll produce anything novel or improve the functioning of the Supreme Court. the federal government has amassed too much power and Congress has abdicated its policymaking responsibility by punting to the executive branch, which then gets sued. For example, the culture war over contraceptive coverage under Obamacare – remember the Hobby Lobby and Little Sisters of the Poor cases? – was instigated by regulatory action, not anything Congress did. because what we have is different interpretive theories matching partisan preferences at a time when the parties are more ideologically sorted than any time since at least the Civil War. This, at a time when the Court regularly decides major controversies because There are no easy ways to dissolve the toxic cloud that has descended over our judicial debates. I’m interested in the commission’s work, but I doubt it’ll produce anything novel or improve the functioning of the Supreme Court. In the end, the slew of legislative and regulatory priorities Democrats have after four years of frustration may mean that, even as Biden fills what vacancies arise, judges
become a back‐burner issue. But a lot will depend on court rulings we see in response to those policy initiatives, as well as what controversy the Supreme Court stirs up with its term‐ending decisions at the end of the month. Reform pressure may dissipate if the justices don’t make too many waves, which would certainly be Chief Justice Roberts’s preference. But he’s no longer the median vote – Brett Kavanaugh is now the man in the middle. But even if the justices manage to tread gingerly on Philadelphia’s ban of Catholic Social Services from foster/adoption programs for not placing kids with same-sex couples and California’s forced nonprofit‐donor disclosures, next term already has cases about abortion and guns, with affirmative action possibly joining them. There’s just no way to keep the Court out of our political discourse – which brings us back to Joe Biden’s judicial temperament. Ilya Shapiro is a vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court . He’s also been P.J. O’Rourke’s pro bono lawyer in five Supreme Court cases – and worth every penny.
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June 2021
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