As my readers know, since my days as a Northwestern University undergraduate, the study of American history has been my leading intellectual passion. At my tender age of three score and ten, my intellectual passions are those most capable of fulfillment!
Over the past year, my devotion to American history has also been something of a vexation as I struggle to make a decision as to a topic for my next book.
Ironically, I had settled on a subject regarding one of the most consequential justices in the history of the Supreme Court, Owen Roberts. He was renowned in his era for being the swing vote on the Supreme Court during the first term of President Franklin Delano Roosevelt between the liberal justices well inclined to the New Deal and those conservative justices who were opposed.
Roberts’s vote to uphold a state minimum wage law in 1937 was the major factor in persuading members of Congress that FDR’s proposal to expand the court from nine justices to 15 (“pack the court,” in political parlance) was unnecessary. His decision was known as “the switch in time that saved nine.” After he retired from the court in 1945, he served briefly as Dean of the University of Pennsylvania Law School.
I had intended to write a book entitled, The Other Justice Roberts: A Biography of Owen Roberts. I had abandoned the endeavor due to the unlikelihood of public interest.
Now, there is increased discussion of a President Biden and a Democratic Congress expanding the Supreme Court from nine to 15 justices. The nation’s highest court has been moved to the right by President Trump’s appointments. If he appoints an anti-abortion justice to replace the recently deceased Honorable Ruth Ginsburg, there may be the necessary five votes to reverse Roe v. Wade, the 1973 decision guaranteeing American women the right to an abortion during their first six months of pregnancy. If such a reversal happens, a Democratic President Joe Biden and a Democratic Congress may well expand the Supreme Court to create a pro-choice majority.
Accordingly, I am considering taking my Owen Roberts book proposal out of the mothballs and revisiting it! Any law student out there interested in bring my researcher?
But let’s leave this much-needed moment of levity and discuss the politics of Trump’s anticipated Supreme Court appointment. This should begin with an analysis of the present state of the presidential race.
Take a look at the following two state-by-state electoral vote guides. Biden has a huge electoral vote advantage, and Trump is in horrific Electoral College shape.
Folks, let me be subtle. Unless Joe Biden has a complete meltdown in the debates or is the subject of a major scandalous revelation, there is no way in hell that Donald Trump will be reelected, unless he can find a major criminal way to steal it.
And adding to Trump’s woes is the fact, as I predicted (https://www.insidernj.com/trump-law-order-message-backfiring-failing-badly/ ) that his racist law-and-order message has been an abject failure. In fact, it has been so ineffective that the Trump campaign has pulled all its law-and-order television commercials.
With thousands of Americans dying of the Coronavirus every day, and with Bob Woodward exposing the president as a pathological liar, the Trump campaign has no message and no hope.
And the Republican Party is now faced with the certain loss of control of the US Senate. The GOP will definitely incur losses in Maine, Arizona, Colorado, and North Carolina, with only a likely win in Alabama to offset them. This gives the Democrats a minimum of 50 seats, and Vice President Kamala Harris will break the 50-50 tie to give the Democrats control. In addition, the Democrats are likely, although not certain favorites to capture GOP Senate seats in Iowa and Montana and at least have an even money chance to defeat in South Carolina incumbent former Trump critic and present ultimate Trump sycophant Senator Lindsey Graham.
And, of course, retention of Democratic control of the US House of Representatives is a done deal. Adding to the Democratic House margin will be the national Democratic rookie-of-the-year, Amy Kennedy victory over Republican incumbent Jeff Van Drew in New Jersey Congressional District Two.
What a way to celebrate the 60th Anniversary of Jack Kennedy’s 1960 election as president!
If the Republican Party was a stock on the New York Stock Exchange, one could make a fortune by short selling it. As they say in my beloved Brooklyn, when it comes to Trump’s reelection chances, FUHGGEDABOUTIT!!
Still, to paraphrase Dylan Thomas, Donald Trump and his authoritarian Attorney General, Fred Flintstone Doppelganger Bill Barr will not go gently into the night. They know that this is the year of the African-American Voter, as I forecast on New Year’s Eve(https://www.nj.com/opinion/2019/12/2020-will-be-the-year-of-the-african-american-voter-opinion.html?outputType=amp). and that the enactment of Vote-By-Mail (VBM) statutes this year, to assist voters threatened by the Coronavirus Pandemic, will enable millions of Black Americans to vote who otherwise couldn’t.
Bill Barr is hardly a man sensitive to the heritage of oppression of African-Americans and their continued subjugation to systemic racism. After all, Barr is the historical dolt who compared the shutdown of business to avoid Coronavirus to the enslavement of African-Americans from 1619 (which Trump doesn’t want you to study) to the end of the Civil War in 1865.
Accordingly, Trump and Barr are attempting to have the new VBM statutes set aside on the alleged basis that they will result in fraud. They want a new justice approved and sworn in on the Supreme Court in advance of the election in order to assist their election stealing cause.
This attempt at election theft will fail miserably and be exposed for the despicably racist tactic that it is. There is not a scintilla of evidence for the claim that there is an inherent danger of fraud in VBM.
Recently, a Federal District Court Judge in Nevada, a George W. Bush appointee, rejected such a spurious claim by the Trump campaign on the grounds of a lack of evidence and the speculative nature of the claim.
There is not a competent jurist in America, liberal or conservative, originalist or broad constructionist, who will disagree with this Nevada finding. In fact, originalist judges, who believe that Constitutional provisions should be interpreted based upon the intent of the provision framer, will virtually always defer to the states in the enactment of their voting procedures, unless there is evidence of racial or ethnic discrimination.
None of the current Supreme Court justices, nor the new appointee, will be receptive to the Trump-Barr claim of inherent fraud in VBM procedures. If there is evidence of voting fraud in the election, the lower courts and eventually the Supreme Court will rule on it at the time when evidence of same is presented to them. Election results will only be set aside if such fraud is widespread enough to affect the results. Given the fact that VBM fraud is easily detectable and always accountable, it has a history of being very minimal.
So the question remains: Aside from the Trump VBM goal, what is the president’s major ideological test for a Supreme Court nominee?
Trump himself is without any real ideological commitment to anything, except for his virulent racism. He has, however, made a Faustian bargain with the Federalist Society and the anti-abortion movement for their support, and the price he has to pay is the nomination of Supreme Court justices likely to reverse Roe v. Wade.
The choice is down to two federal appellate justices, Amy Coney Barrett of Indiana and Barbara Lagoa of Miami.
A Lagoa appointment could be of significant value to Trump in his efforts to carry Florida. She represented pro bono relatives of Elian Gonzalez, the year 2000 famed Cuban child refugee case. This was a highly popular cause in the Florida Cuban community. Her appointment could have value in influencing undecideds in the Florida Cuban community to vote for Trump.
Most leaders of the Federalist Society and the anti-abortion movement are reluctant, however, to see Lagoa nominated. She has no record of decisions regarding the application of Roe v. Wade, while Barrett has ruled on the issue in a manner restricting abortion rights.
Accordingly, most media covering the White House are reporting that Barrett has the inside track for the nomination. Assuming they are correct, the media will report her nomination as increasing monumentally the likelihood that Roe v. Wade will be overturned and that the five-justice majority for Roe reversal will consist of Justices Thomas, Alito, Kavanaugh, Gorsuch, and Barrett.
Roe v. Wade precludes states from prohibiting abortion within the first six months of pregnancy. If Roe v. Wade is overturned, states would now be able to outlaw abortion. A Pew poll last year found that seven in ten oppose seeing Roe overturned.
Accordingly, the nomination of Barrett and the reporting that Roe is now likely to be overturned will be the final ultimate disaster for the Trump campaign. The advantage that Biden has over Trump among women voters will widen even further. Biden’s final popular vote margin over Trump will exceed ten percent, and his electoral vote total will approach 400.
But during the first Biden term, will Roe v. Wade definitely be overturned?
I cannot predict this with certainty. Justice Thomas is already on record as favoring overturning the Roe decision. Barrett is known to have strong Catholic anti-abortion views. In a 1985 memorandum as an attorney at the US Justice Department, Alito said that the Constitution does not protect the right to an abortion, and he has refused to say that Roe v. Wade is settled law. There is every reason to believe that given the opportunity, Barrett, Thomas, and Alito would vote to reverse Roe.
The situation is less clear regarding the two other Trump appointed justices, Gorsuch and Kavanaugh. Gorsuch has acknowledged that Roe v. Wade is the law of the land, and Kavanaugh has referred to the case as settled law. Neither has made a commitment, however to vote against overturning the case.
So I cannot predict what the Supreme Court will do as to Roe v. Wade, with three Trump appointed justices.
I will predict that if Roe v. Wade is overturned, a President Biden and the Supreme Court will enact an expansion of the Supreme Court from nine to fifteen justices in order to restore the abortion rights granted by Roe v. Wade. An overwhelming majority of Americans will demand it.
I am not a spokesperson for the Biden campaign, and I have never discussed the court expansion issue with them. Joe Biden has run a magnificently disciplined campaign, and he has never discussed this issue publicly.
Prominent Supreme Court justices, including both Stephen Breyer and Ruth Ginsburg herself have objected to the expansion of the Supreme Court on the basis that it would constitute a political interference with its independence. An outstanding column in opposition to court expansion was written by former New Jersey Supreme Court Justice Peter G. Verniero:
Personal full disclosure. I was a public advocate for the confirmation of Peter Verniero as a Justice on the New Jersey Supreme Court in 1999, appearing in print and television media. During his service on the New Jersey Supreme Court from 1999 to 2004, he proved to be one of America’s most outstanding jurists, and I say that without hyperbole. My friendship with him has survived all the turmoil and vicissitudes of national and state politics over the past three decades, and I am most fortunate and proud for that.
Justice Verneiro is right. The expansion of the US Supreme Court from nine to fifteen justices would be most regrettable, for all the reasons he has stated. Unfortunately, the reversal of Roe v. Wade will make it inevitable. I hope it never comes to that.
Alan J. Steinberg served as regional administrator of Region 2 EPA during the administration of former President George W. Bush and as executive director of the New Jersey Meadowlands Commission.
- Amy Coney Barrett
- Amy Kennedy
- Barbara Lagoa
- Bill Barr
- Bob Woodward
- Clarence Thomas
- Donald Trump
- Elian Gonzalez
- George Bush
- Jack Kennedy
- Jeff Van Drew
- Joe Biden
- Kamala Harris
- Neil Gorsuch
- Peter Verniero
- Roe V. Wade
- Ruth Bader Ginsburg
- Samuel Alito
- Stephen Breyer
- Supreme Court
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