By: The Editorial Board – wsj.com – October 27, 2024

Harris endorses a wholesale restructuring of the judiciary and breaking the Senate filibuster rule to pass it.

Ms. Harris: “The American people increasingly are losing confidence in the Supreme Court, in large part because of the behavior of certain members of that Court and because of certain rulings, including the Dobbs decision, and taking away a precedent that had been in place for 50 years, protecting a woman’s right to make decisions about her own body. So I do believe that there should be some kind of reform of the Court, and we can study what that actually looks like.”

There you have it. Ms. Harris has already endorsed President Biden’s plan to impose “ethics” rules on the Justices that would invite political harassment and compromise judicial independence. Now she won’t disavow packing the Court. She has called for Democrats, if they keep the Senate in November, to bypass the 60-vote filibuster rule, letting them enact such bills without even a modicum of compromise.

How far would they go? The best guide is what they’ve already proposed. Oregon Sen. Ron Wyden introduced a bill last month to expand the Court to 15 Justices from nine over three presidential terms. The legislation says the High Court “may invalidate an Act of Congress” only if two-thirds of participating Justices agree. So if Congress votes to censor opponents, 10 of Mr. Wyden’s 15 Justices would have to agree that this violated the First Amendment.

Mr. Wyden’s bill would also require the IRS to audit and publish the Justices’ tax returns. This isn’t required of Congress or Presidents. Instead of leaving recusal decisions to individual Justices, based on criteria like financial interests, Mr. Wyden’s bill says litigants could file recusal motions, and the Justices “shall” reply in writing. Even if a Justice thinks recusal isn’t warranted, a vote by two-thirds of the Court could force him or her off the case. This would invite political jockeying to flip outcomes by disqualifying Justices on the other side.

A bill by Rhode Island Sen. Sheldon Whitehouse, which passed the Judiciary Committee last year, features a similar recusal idea. It would solicit public “complaints” about the Justices, which would be investigated by panels of chief judges from the lower appellate courts. A panel could “take sworn testimony” and “issue subpoenas.” This is a recipe for partisan warfare.

Then there’s Mr. Biden and Ms. Harris’s call for term limits. The Constitution says Supreme Court Justices have life tenure. The most aggressive proponents of term limits say Congress could create a new office of “Senior Justice,” which would automatically apply after 18 years of regular service. The idea is to strip Justices of the ability to hear appeals, while pretending they retain their offices. It’s unconstitutional, which isn’t to say Democrats won’t try it anyway in a statute.

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The future of the Supreme Court is on the ballot in every Presidential election, since vacancies are filled by the winner. The Court’s oldest members are Justices Clarence Thomas (76) and Samuel Alito (74), and they’d surely think hard about retiring if they could be replaced by like-minded successors. Liberal Justice Sonia Sotomayor is 70. If Mr. Trump wins on Nov. 5 and Republicans take the Senate, the GOP could cement a High Court majority that believes in reading the Constitution as the Founders intended.

If Mr. Trump wins and Democrats hold the Senate, the result might be four years of stasis. Would a single Senate Democrat vote with the GOP to confirm a Court nominee by Mr. Trump? If Ms. Harris wins the White House with a Republican Senate, the result might depend on the details of the nominee and the vacancy. Or Democrats could bide their time until 2026, when the Senate election map is in their favor.

What’s at stake this year, however, is much larger. If Ms. Harris wins next week, while Democrats hang on to 50 Senate seats, they have promised progressive voters they’ll take a wrecking ball to the current Supreme Court. It used to be a fringe position to propose fundamental “reform” of the Court, but Mr. Biden has embraced it, Ms. Harris has endorsed it, and the Senate Judiciary Committee has passed it.

Democrats are serious. They say Mr. Trump is a threat to democracy and U.S. institutions, while they’re pledging to restructure the judiciary wholesale. Do they notice the cognitive dissonance? Apparently not. But voters might.

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Source: The Supreme Court’s Future Is on the Ballot – WSJ