Presidential Commission on the Supreme Court of the United States
efforts to protect themselves and their loved ones from the scourge of gun violence,” and undermine other important precedents related to campaign finance reform, administrative law, and religion); Kang Testimony, supra note 79, at 3 (“The problem is not that Democrats are unable to understand the impact of the courts on reproductive rights, LGBTQ+ equality, voting rights, gun violence prevention, labor, the environment, racial justice, immigration, and more. We hold our collective breath every June to see what rights the Republican justices will allow to survive another year.”); Sahil Kapur, Some Republicans Feel Protected by 6–3 Supreme Court, Even if Biden Wins, NBC News (Nov. 3, 2020, 12:15 PM), https://www.nbcnews.com/politics/2020-election/some-republicans-feel-protected-6-3-supreme-court-even-if-n1245838; Moira Donegan, Enough Playing Nice. It’s Time to Pack the Courts, Guardian (Apr. 19, 2019, 6:00 AM), https://www.theguardian.com/commentisfree/2019/apr/19/pack-the-courts-democrats-2020l; Elie Mystal, The Democrats Need to Prepare for the Supreme Court to Overturn ‘Roe v. Wade,’ Nation (Oct. 7, 2020), https://www.thenation.com/article/politics/biden-abortion-supreme-court; Jeff Taylor, How Safe is Gay Marriage? Advocates Fear Increasingly Conservative Court, NBC News (Oct. 6, 2020, 1:48 PM), https://www.nbcnews.com/feature/nbc-out/fight-against-gay-marriage-still-alive-well-u-s-advocates-n1242272; Adam Serwer, The Supreme Court Is Helping Republicans Rig Elections, Atlantic (Oct. 22, 2020), https://www.theatlantic.com/ideas/archive/2020/10/dont-let-supreme-court-choose-its-own-electorate/616808; Adam Gopnik, The New, Conservative Supreme Court Is Returning to the Second Amendment, New Yorker (May 7, 2021), https://www.newyorker.com/news/daily-comment/the-new-conservative-supreme-court-is-returning-to-the-second-amendment.
- ↑ Cf. James L. Gibson & Gregory A. Caldeira, Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People 43–44 (2009) (“[O]ver the long haul, the repeated failure of an institution to meet policy expectations can weaken and even destroy that institution’s legitimacy in the eyes of disaffected groups. … From this perspective, Court support can change fairly quickly over time. …”); James L. Gibson & Michael J. Nelson, The Legitimacy of the U.S. Supreme Court: Conventional Wisdoms and Recent Challenges Thereto, 10 Ann. Rev. L. & Soc. Sci. 201, 206–07 (2014) (noting this risk to “diffuse [public] support”).
- ↑ Cf. Carl Hulse, McConnell Suggests He Would Block a Biden Nominee for the Supreme Court in 2024, N.Y. Times (June 14, 2021), https://www.nytimes.com/2021/06/14/us/politics/mcconnell-biden-supreme-court.html (noting that then-Senate Majority Leader McConnell “threatened on Monday to block any Supreme Court nominee put forward by President Biden in 2024 if Republicans regain control of the Senate” and that McConnell declined to say whether a Republican-controlled Senate would confirm a nominee in 2023).
- ↑ See Presidential Commission on the Supreme Court of the United States 5 (July 20, 2021) (written testimony of Jeffrey J. Peck) [hereinafter Peck Testimony], https://www.whitehouse.gov/wp-content/uploads/2021/07/Peck-Testimony.pdf (noting, and proposing reforms to address, “the level of partisanship and tribalism associated with Senate processes on Supreme Court nominations”); Presidential Commission on the Supreme Court of the United States 1 (July 20, 2021) (written testimony of Benjamin Wittes, the Brookings Institution) [hereinafter Wittes Testimony], https://www.whitehouse.gov/wp-content/uploads/2021/07/Wittes-Testimony.pdf (emphasizing “the decay of the confirmation process”); see also Presidential Commission on the Supreme Court of the United States 8:31:32–8:34:27 (July 20, 2021) (oral testimony of Randy E. Barnett, Georgetown University Law Center), https://www.whitehouse.gov/pcscotus/public-meetings/ (suggesting that the Senate’s repeated refusal to confirm a nominee could violate the spirit of the Constitution, given that “all discretionary power can be abused”).
- ↑ See Presidential Commission on the Supreme Court of the United States 9–10 (July 20, 2021) (written testimony of Larry Kramer, William & Flora Hewlett Foundation) [hereinafter Kramer Testimony], https://www.whitehouse.gov/wp-content/uploads/2021/07/Kramer-Testimony.pdf (“Paradoxical as it sounds, enlarging the Court now might actually offer a way back to a less politicized process. … [F]aced with a credible threat that ‘tit’ really will be matched by ‘tat,’ opposing parties learn to cooperate.”).
- ↑ Michael J. Klarman, Foreword: The Degradation of American Democracy—and the Court, 134 Harv. L. Rev. 1, 1 (2020).
- ↑ See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 200–01 (2008) (upholding an Indiana voter identification law); Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321 (2021) (upholding Arizona laws that excluded ballots for being deposited at the wrong precinct and criminalizing ballot harvesting, respectively); Shelby Cnty. v. Holder, 570 U.S. 529, 557 (2013) (striking down the Voting Rights Act’s preclearance regime);
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