Following Amy Coney Barrett’s confirmation and swearing in as a Supreme Court justice on Monday, October 26, Representative Alexandria Ocasio-Cortez (D-N.Y.) was among those calling for an expansion of the court. The ascension of Barrett, a product of what some call conservatives’ long-term “scheme” to pull the federal judiciary to the right, has prompted serious questions about the ideological balance of the court moving forward — especially as the Supreme Court has already been deciding cases related to the 2020 election.
“Expand the court,” the congresswoman known as AOC wrote in a tweet Monday night.
“Republicans do this because they don’t believe Dems have the stones to play hardball like they do. And for a long time they’ve been correct,” she wrote in a follow-up. “But do not let them bully the public into thinking their bulldozing is normal but a response isn’t. There is a legal process for expansion.”
There is growing momentum behind a Democratic push to expand the Supreme Court if Joe Biden is elected as a means to account for how conservatives have created an apparent 6-3 conservative-liberal split on the high court, part of the larger rightward push across the courts. Biden has said he would convene a bipartisan commission to study court reforms.
“The rushed and unprecedented confirmation of Amy Coney Barrett as associate justice to the Supreme Court, in the middle of an ongoing election, should be a stark reminder to every American that your vote matters,” Biden said in a Monday night statement that did not mention court expansion, but did address an upcoming SCOTUS case on the Affordable Care Act (ACA).
“This goal [of tearing down the ACA] — the goal of the Republican Party for 10 years — was a litmus test in selecting this nominee, regardless of the damage done to the U.S. Senate, to Americans’ faith in the legitimacy of the Supreme Court, and to our democracy, and regardless of how the Affordable Care Act has protected hundreds of millions of people before and during the pandemic,” Biden said, also asking people to “vote for the legacy of the late Justice Ruth Bader Ginsburg.”
Critics have been eager to attack the former vice president for not issuing an answer on the question of what they call “court packing.” Attacks from Trump and Republicans prompted Biden to say he was “not a fan” of court packing earlier this month, as NBC News reported.
“Biden’s Handler’s want to expand the Court,” President Donald Trump wrote on Twitter Monday. “This would be very bad for the USA. On top of that they don’t want to provide a list of who would be chosen for the Court. MUST HAVE A LIST OF THESE RADICAL LEFT JUDGES!”
Trump was insistent on getting Barrett on the Supreme Court from the time RBG’s seat came open, including stressing that nine justices could be needed to ensure any cases related to the election are decided. The Supreme Court has effectively decided an election before — in 2000, a ruling on a Florida recount handed the election to George W. Bush, but those were unlikely circumstances.
Still, whether or not the entire election ends up hinging on a SCOTUS ruling, the highest court in the land is already ruling on election-related cases. The same day that Barrett was confirmed, her now fellow justices decided 5-3 that Wisconsin could not count mail-in ballots returned after election day, undoing a lower court ruling extending the deadline by six days, as the Associated Press reported. The case came as concerns about postal delays in swing states like Wisconsin have some worried that ballots won’t arrive in time to be counted.
The ruling, issued before Barrett’s confirmation, included a concurrence from Justice Brett Kavanaugh, who wrote, “For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. Those States want to avoid the chaos and suspicions of impropriety that can ensure if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”
On Monday, President Trump also stressed the importance of having results in election night as he alleged on Twitter that there were “big problems and discrepancies with Mail In Ballots all over the USA.” That presidential tweet was marked by Twitter with a warning that reads: “Some or all of the content shared in this Tweet is disputed and might be misleading about how to participate in an election or another civic process.” It also included a link offering readers a chance to “learn how voting my mail is safe and secure.”
Monday’s SCOTUS 5-3 ruling comes after a 4-4 tie last week that allowed Pennsylvania’s mail-in ballot deadline to be extended by three days, but Republicans in the state have already asked the Supreme Court to consider their challenge to that extension again.
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