Democrats worry that if Amy Coney Barrett is confirmed to the Supreme Court, it will jeopardize their agenda should they win the Senate and the White House in November. Which is to say, Democrats recognize that their own agenda is probably unconstitutional.
Democratic senators are throwing everything they can to try and slow down Barrett’s confirmation, from threats to pack the Supreme Court to demanding delays related to their Republican colleagues contracting the coronavirus. Now, they are hoping to win sympathy by admitting their agenda can’t withstand constitutional scrutiny unless they fill the Supreme Court with yes-men.
Illinois Sen. Dick Durbin said Barrett’s confirmation would mean that “a lot of things that Joe Biden values, and I value, will be at risk.” Connecticut Sen. Chris Murphy, the most disingenuous member of the upper chamber, said Barrett’s confirmation would lead the court to view itself as an “equal legislative body to Congress, so there’s no telling where their activism will stop.”
Democrats, of course, like it when the Supreme Court views itself as a superior legislative body and it advances progressive politics. Their primary concern with an originalist court is that the constitutional abomination that is Roe v. Wade would be overturned, freeing states from the stranglehold preventing them from passing any law that could be construed as restricting abortion access.
Gun control is the most obvious issue where Democrats will overstep their constitutional bounds. Hillary Clinton wanted to appoint Supreme Court justices who would overturn the court’s decision in District of Columbia v. Heller, which ruled that the Second Amendment protects the individual right to own a firearm without serving in a state militia.
That the Supreme Court might obstruct a Democratic agenda by protecting Second Amendment rights and religious liberty says more about the Democratic Party than it does of the high court. Given that Democrats are preemptively declaring the Supreme Court to be illegitimate, and are threatening to increase the number of justices so they can get rulings they want, this confirms what we already knew.
Democrats are desperate for some sort of golden ticket that will get them to January with a vacant Supreme Court seat. Unlike most of their arguments, this one shows just why it’s imperative that Republicans fill the seat. The agenda Democrats are insistent on pursuing will run afoul of the Constitution more than once, and an originalist court will be needed to keep them in check.
