Even before Justice Ruth Bader Ginsburg’s death, significant voices on the left had embraced the idea of "packing" the Supreme Court: increasing its size, if former vice president Joe Biden wins and Democrats take the Senate, to dilute the impact of President Trump’s appointees and to counterbalance the seat "stolen" from President Barack Obama. Now that President Trump has nominated Judge Amy Coney Barrett and committed himself to a swift nomination — and Republicans have reversed themselves on election-year confirmations — that talk has intensified. And so has debate over ways of taking power away from the court.
Over the past several decades, worries about excessive judicial power have been associated mostly with the political right: Unelected, life-tenured justices, conservatives said, were inventing rights to abortion or same-sex marriage under the guise of “discovering” them in the constitutional text. More recently, though, concern with the outsize role courts play in our life has migrated to the political left. The New York Times columnist Jamelle Bouie recently argued that the United States should not be a “judgeocracy,” making the case that “protecting the right of the people to govern for themselves” may require “curbing judicial power.” Similarly, in the socialist magazine Jacobin, Princeton historian Matt Karp called for leftists to take inspiration from Abraham Lincoln’s aggressive confrontation of a hostile Supreme Court and its infamous Dred Scott decision, which held that Black Americans could not be citizens. “It is not enough,” Karp argued, “to question the decisions, the justices, or even the structure of the current court — we need to challenge, as Lincoln did, the foundation of its power to determine the law.”
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