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Supreme Court Alarmism

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By: Ryan Mills – nationalreview.com

Activists are spending millions on misleading ads telling voters that Biden could reshape the Court for generations.

Frustrated by recent decisions on guns and judicial deference, and still stinging from the 2022 ruling that overturned Roe v. Wade, left-wing activists and media are ramping up calls for Democrats who aren’t enthusiastic about President Joe Biden to vote for him anyway so he can change the direction of the Supreme Court, potentially for generations.

Last week, a left-wing dark-money group, Stand Up America, announced that it was launching a $1 million digital campaign to urge progressives to pledge to be a “Supreme Court voter” — suggesting that if Biden is reelected, he could have the opportunity to replace multiple justices, “potentially reshaping the Court for generations to come.”

On Tuesday, in the wake of the Supreme Court’s ruling on Donald Trump’s immunity from prosecution, Politico reported that the left-wing legal advocacy organization Demand Justice is planning to spend $10 million on a range of Court-related activities, including elevating the Court as a 2024 voting issue.

On Sunday, the far-left Daily Kos published an article that suggested that voter distrust in the Court could help Biden win reelection, and declared that “it’s time to scaremonger.”

Carrie Severino, president of JCN — formerly the Judicial Crisis Network, an organization that supports and defends originalist judges — said that while presidents obviously can have a “huge impact” on the Court, the prospect that Biden could reshape it for generations by replacing retiring justices is “a little overblown.”

“That said, anyone who lived in 2016 knows that sometimes things don’t go to plan,” she said, referring to the sudden death of Justice Antonin Scalia ahead of that year’s election.

Biden has said that the next president is “likely to have two new Supreme Court nominees.” Politico’s report said that whoever wins in November could “replace as many as three retiring Supreme Court justices.” But the most likely scenarios, if there are any openings on the Court in the next four years, would seemingly involve Biden replacing liberal justices or Trump replacing conservatives — extending the Court’s current left-right configuration rather than dramatically reshaping it.

In terms of recent makeups, this Supreme Court is relatively young. The Court’s two oldest justices, conservatives Clarence Thomas and Samuel Alito are 76 and 74, respectively. At 70, Sonia Sotomayor is the oldest of the three liberal justices.

Neither Thomas nor Alito is likely to intentionally step down under a Biden second term.

Biden, who was the chairman of the Senate Judiciary Committee during Thomas’s confirmation hearings in 1991, was a leader of a campaign to smear him as an activist intent on using a “natural law” judicial philosophy to inform his conservative decisions.

“Of all the people [Clarence Thomas] would not want to be replacing him, Joe Biden is pretty high on the list,” Severino said.

Some left-wing activists have been pushing Sotomayor to retire so that Biden can fill her seat with a younger justice. But Sotomayor is young enough to remain on the Court for more than a decade, said Hans von Spakovsky, a senior legal fellow with the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Replacing her with a younger liberal wouldn’t change the Court’s current left-right dynamic in the short term.

“They wouldn’t get anything different for the next 15 years,” von Spakovsky said.

Justice Elena Kagan, who reports say has also received some pressure from the left to retire, is only 64, and could continue serving for two decades or more. Severino called Kagan “the most effective of the liberal justices” in terms of influencing her colleagues.

“She’s a very, very good lawyer, and she’s a very good writer,” von Spakovsky added. “Why would they want to lose someone like her when she’s only 64, to me that’s just being foolish, politically foolish.”

“Even if Biden gets reelected, I just don’t think he’s going to get any chance to appoint anybody to the Supreme Court,” von Spakovsky said.

While the stars would have to align for Biden to reshape the Court by replacing retiring justices, he could fundamentally change the Court if Democrats can hold the Senate in November, end or change the filibuster rules, and agree to add new seats to the Court. Retiring moderate senators Joe Manchin of West Virginia and Krysten Sinema of Arizona have served as the strongest roadblocks to Democratic efforts to end the filibuster.

While not mentioned in its press release about its “Supreme Court voter” campaign or in a subsequent writeup in the New York Times, Stand Up America supports packing the Court, “help restore ideological balance by adding four new seats to the bench.” The organization also is a proponent of mandating term limits and a code of ethics for the Court.

The Court’s 6–3 conservative majority “does not reflect our country’s politics or diversity,” the Stand Up America website states. “In fact, a majority of the justices are older, wealthy, straight white men — and more than half of the justices were appointed by presidents who lost the national popular vote.”

Stand Up America was founded in 2016 as part of the “resistance” to Trump. Its founder, Sean Eldrige, is a failed congressional candidate and gay-rights activist who is married to one of the co-founders of Facebook. The group’s IRS forms indicate revenue of more than $5 million annually, though as a 501(c)4 nonprofit, it is not required to report its donors.

Attempts by National Review to reach Eldridge on his cell phone were unsuccessful. A Stand Up American spokeswoman did not respond to an email requesting an interview.

The Stand Up America website states that their intent is to break down “structural barriers that conservatives have built to stop progress,” adding that “American democracy is rooted in a history of systemic racism, classism, and sexism, which continue to this day.”

Demand Justice has also unsuccessfully been pushing to expand the Court since its founding in 2016 by Brian Fallon, the former press secretary for Hillary Clinton’s presidential campaign. Fallon stepped down as the group’s executive director last year. Like Stand Up America, Demand Justice is not required to disclose its donors since it is sponsored by a 501 (c)4 organization, The Sixteen Thirty Fund.

If Democrats did attempt to pack the Court, von Spakovsky said, “it would be the equivalent to seeing blood on the floor of the Senate in the fight over that.”

Severino called it a “horrifying prospect” that would be “incredibly damaging” to the Court.

“What it would likely lead to is a one-way ratchet where each side just keeps adding justices to outnumber the other,” she said. “That’s why Joe Biden in 1982 called it a ‘bonehead idea.’ That’s why Ruth Bader Ginsburg said that it was a horrible idea that should have gone out with FDR.”

Severino said left-wing activists are frustrated that the Supreme Court will no longer “just do their bidding” on issues like abortion and guns. And they aren’t interested in building a movement that could take years or decades to counter the right.

“They want to shortcut it,” she said.

The Left’s recent efforts at delegitimizing the Court are aimed at laying the groundwork for fundamentally altering it, Severino said.

“That is 100 percent their goal,” she said. “Democrats, these activists on the left were used to, for half a century at least . . . a Court just being willing and able to do the things that they couldn’t get through the legislative process.”

While the Stand Up America “Supreme Court voter” campaign does not specifically mention packing the Court, it does include dire warnings from celebrities, including Barbara Streisand and TV personality Andy Cohen, about what could happen if Trump is reelected. In one ad, Cohen suggests that Trump would pick “more MAGA justices who will threaten our fundamental freedoms for decades to come.”

In an online video, actor Misha Collins of the CW series Supernatural warns of an ongoing conspiracy by Evangelical Christians and an “apocalyptic America” if Trump wins.

“Evangelical Christians are co-opting the Republican governments and turning the United States of America into a Christian theocracy,” he says in the video. “I don’t care if Biden’s not your favorite candidate. He’s our choice right now.”

In the Daily Kos, a far-left writer who goes by the pen name Aldous J. Pennyfarthing wrote that it is likely helpful to Biden if Americans believe the Supreme Court is biased.

“So, well, it’s time to scaremonger,” he wrote. “Not like Republicans do, about things that aren’t happening, but in response to the very real possibility that Trump will appoint more Leonard Leo-approved justices who will seek to strip away even more rights for the glorification of a god most of us plebs have trouble recognizing.”

At one point, he asks readers to imagine a ridiculous scenario where Trump replaces Chief Justice John Roberts with Judge Jeanine Pirro, the Fox News host. “And if you think that’s a joke and couldn’t possibly happen, you clearly haven’t been paying attention,” he wrote.

Republicans have made Supreme Court picks an election focus for years, with Trump embracing the strategy in 2016 to win over conservative skeptics. Left-wing groups like Fix the Court and People for the American Way have tried to make similar pitches to voters over the years, but with less success.

Polls showed that the Supreme Court surged in importance for Democratic voters after Justice Ginsburg’s death ahead of the 2020 election. The Dobbs decision that overturned Roe in 2022 is largely credited with motivating Democratic voters in 2022.

While Republicans have historically been more likely to cite the Supreme Court as a motivation to vote for president, von Spakovsky said that stacking the federal courts with leftwing judges has long been a motivator for Democratic politicians and activists, too. He said Biden’s picks for the federal courts — including Nancy Abudo, a former lawyer for the Southern Poverty Law Center — are “the most extremists ever appointed to federal judgeships in American history.”

“This may be the first time they’ve actually gone public with telling people, ‘This is why you need to vote for Biden,’” he said. “That has been a constant theme among all of the groups, all of the advocacy organizations of the left, all of their political action committees, who behind the scenes . . . fund the Democratic Party and basically are the machine for their get-out-the-vote efforts.”

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Source: Progressive Dark-Money Groups Settle on 2024 Strategy: Supreme Court Alarmism | National Review