No one is completely safe on the US Supreme Court. Allegations of conflicts of interest from the most conservative to the most progressive members this week shed light on longstanding problems with the powerful US court. And they added even more fuel to the fire of the already unpopular court, with recent decisions that reversed historic policies and programs of the Biden administration.
In the two and a half years that the Democrat has been in charge of the White House, the court blocked government programs for student debt relief, regulation of pollutants in factories, immigration rules and mandatory vaccine or Covid tests for large companies during the worst phase of the pandemic.
It also prohibited universities from using race as a criterion for increasing diversity, ruled that the right to freedom of expression overrides anti-discrimination laws against LGBTQIA+ people and, in the most repercussion decision, reversed the five-decade understanding that abortion is a constitutional right, opening space for at least 21 states to prohibit or limit the procedure.
It is a direct result of the court’s conservative majority, enshrined in the Donald Trump years (2017-2021). Six of the nine most powerful justices in the country are more to the right, raising the state of friction to the point that Biden went so far as to say that this is “not a normal court”.
But the president’s allies want him to raise his tone even further and have been trying to convince him to attack the institution head-on, according to a report in the New York Times, already anticipating the thorn in the side that the court could be in the presidential election of the year that he comes.
Biden has so far avoided using the playbook of Brazilian Jair Bolsonaro with the STF and clashing head-on, saying that this could undermine the institution itself, and has rejected ideas proposed by Democrats such as expanding the number of judges to dilute conservative influence.
“They’ve done a lot of damage, but if we start the process of trying to expand the court, we’ll politicize it maybe forever in a way that’s not healthy, and that’s not going to be reversed,” he said in an interview with MSNBC. “I may be optimistic, but I believe that some in the court are starting to realize that their legitimacy is being questioned in ways that it hasn’t been in the past.”
The inquiries mainly involve conflicts of interest. The first to be targeted was judge Clarence Thomas, who made luxurious trips sponsored by a republican businessman, according to the American press. This week, Associated Press reports showed that the problem is widespread: aides to progressive judge Sonia Sotomayor pressured universities where the judge was to speak to buy hundreds, and in some cases even thousands, of books written by her for their libraries — the University of the State of Michigan reportedly bought 11,000 copies.
It is very unlikely that this pressure will evolve to force out one of the justices, and in the entire history of the court only one has come close to losing office, in 1805, 16 years after the court was founded—Samuel Chase, one of the signers of the US Declaration of Independence, was impeached in the House on charges of bias, but was acquitted by the Senate.
Even if Biden wins re-election, there is little prospect of a political shift in the court’s composition.
In the United States, there is no mandatory retirement age as there is in Brazil (75 years). The oldest judge on the court is Clarence Thomas (also the most conservative), 75, followed by Samuel Alito, 73. The three Trump nominees (Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh) are all in their 50s.
Trump took over the Presidency in 2017 with two judges over 80 years old – one retired, and another died in office – and, in addition to replacing them, he made a third nomination for a vacancy that was open.
If the Republicans return to the Presidency, on the other hand, and Thomas and Alito decide to leave the court, the new leader of the White House could appoint young conservative justices and maintain the court’s current right-wing composition perhaps for decades.
There is yet another scenario: if Biden is re-elected, but the Republicans gain control of the Senate, they can bar more progressive nominations, since those nominated by the president need to be evaluated by the Legislature. This already happened in 2016, when Barack Obama nominated Merrick Garland, now Secretary of Justice. The then-Republican Majority Leader stalled the nomination, holding the vacant position until it was filled by Trump a year later.
It remains to be seen what impact recent Supreme Court decisions will have on mobilizing voters, but for political scientist Ken Kollman, a professor at the University of Michigan, “the abortion decision will still have major influence in next year’s presidential election.” .
The change in understanding about abortion was considered fundamental in the legislative elections that renewed the House and part of the Senate in November last year, the so-called midterms.
Opinion polls pointed to an advantage for the Republican Party, but Democratic candidates gained traction even in more conservative regions in the interior of the country, with women organizing and registering to vote – suffrage is not mandatory in the US –, rejecting anti-abortion candidates.
The result was that the Democrats not only maintained but increased their majority in the Senate, against the grain of predictions. In the House, they lost, but by a much narrower margin than anticipated.
Democrats expect a similar move next year as they maneuver to reverse the negative impact of the court’s latest rulings. On Friday (14), deputy Kamala Harris announced that she will put into practice another student debt relief program, already announced last year, which cancels US$ 39 billion (R$ 187 billion) of the debt of 804 thousand Americans who have been paying their loans for more than 20 years, when recalculating the amount owed.
She said the government is finalizing a new plan that calculates debt based on borrowers’ income, which she says could cut payments in half.
