The future of the Supreme Court is at stake

For pro-life voters, and particularly for pro-life Christians, the greatest legacy of Donald Trump’s as president is undoubtedly the Supreme Court promise he kept to his evangelical constituents. Trump appointed three justices to the Supreme Court (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) who ended up joining the majority in the landmark Dobbs decision two years ago, overturning the legal and political landscape after a half-century of Roe v. Wade supremacy.

As this presidential campaign has taken shape in the context of so much uncertainty, including candidates dropping out and now multiple assassination attempts against the former president, one constant has been the Democratic candidate’s antipathy for everything about Donald Trump and particularly for this pro-life achievement. One of President Joe Biden’s earliest efforts to roll back Trump’s successes was the formation of a Presidential Commission on the Supreme Court of the United States, which gave its final report and recommendations in 2021. And Supreme Court reform has bookended President Biden’s term, as one of his final public policy proposals was a series of unnecessary and unwise changes to the nation’s highest court.

Vice President Kamala Harris has picked up right where Biden left off. Her campaign promotes what she calls “common-sense Supreme Court reforms,” which include proposals previously made by Biden, such as the imposition of term limits and an ethics commission. These efforts are actually aimed at a radical remaking of the Supreme Court, an institution that has been one of the only effective checks on an increasingly aggressive and comprehensive progressive agenda. Overturning Roe is certainly the court’s greatest sin against the progressive gospel. But its consistent attempts to rein in an overactive executive branch, whether on issues like student debt forgiveness or deference to regulatory rulemaking, have led to increasingly dangerous rhetoric and policy.

In 2020, Sen. Chuck Schumer, D-N.Y., warned Justices Gorsuch and Kavanaugh by name: “I want to tell you, Gorsuch, I want to tell you Kavanaugh—you have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” These comments earned a rare—and sadly necessary—public rebuke from Chief Justice John Roberts. In the meantime, the animosity toward the so-called “MAGA court” and Trump himself has only grown.

Of all the important issues being debated and discussed in this election season, the radical changes to the Supreme Court that have been integrated into the Democratic presidential campaign are the most dangerous and the least discussed. Ahead of the recent Trump-Harris debate, several former attorneys general and litigators, including Bill Barr and Jeff Sessions, wrote a letter imploring the debate moderators to ask questions related to the court. “The United States Supreme Court is one of the most consequential institutions in the nation,” they wrote. “As Americans prepare to vote for president, it would be helpful and appropriate for them to hear how former President Trump and Vice President Harris would seek to impact the Court.” The moderators were too busy fact-checking the former president to inquire about such consequential issues, but Harris did find the opportunity to attack the court’s integrity. She criticized the Dobbs decision, and, referring to the court’s ruling regarding presidential immunity, Harris proclaimed, “We know now the court won’t stop him.”

Unlimited and absolute access to abortion remains the guiding light of Democratic politics, and if it takes undermining the Supreme Court to punish the justices, then that is a price they are apparently willing to pay. Trump’s most significant accomplishment in his first term hangs in the balance.

The gravity of the threat to the court, and thereby to the entirety of the American political order, does not seem to have registered yet. Trump’s regrettable statements on abortion and other life issues seem to indicate that he believes that the pro-life cause is not necessary for a winning coalition. Americans may be forced to make a choice at the ballot box in November between two major party candidates, one who is actively campaigning against the Supreme Court and one who seems blissfully unaware of or unconcerned with the dangers of undermining the constitutional separation of powers.

Democrats have floated a variety of “reforms,” from term limits to political ethics commissions to expanding the number of justices on the court. While none of these are good ideas, adding more justices beyond nine is both the most dangerous as well as the most feasible. Other ideas would require constitutional amendments or cooperation between the branches. But all it would take to “pack” the court with ideological appointees is an agreement between the executive and legislative branches.

Americans do deserve to know that there are real threats to the integrity of our system and the efficacy of the Supreme Court at stake in this election. In the past, Harris has signaled openness to the idea of court packing, and other radical changes to the court are explicitly part of her campaign’s agenda. If the Harris campaign wants to make this election a referendum on the Supreme Court, then it will be up to the American people to stop her.