This Supreme Court Term Will End With Either Catastrophe or 13 Justices

If Amy Coney Barrett is seated before the election, Democrats will need to act quickly.

When Republicans gathered at the White House on Sept. 26 to celebrate the nomination of Amy Coney Barrett to the Supreme Court, they placed themselves at the epicenter of a likely superspreader event. Several senators in attendance—in addition to the president, the first lady, Chris Christie, and multiple GOP operatives—reported COVID-19 infections in the following days. Trump remains hospitalized while key Republicans on the Senate Judiciary Committee are in quarantine. Yet on Friday, Senate Majority Leader Mitch McConnell insisted that he will move “full steam ahead” with confirmation hearings to install Barrett on the Supreme Court, even if that means endangering themselves and Senate staff. McConnell understands they’ll have to act fast to make it happen.

Democrats, meanwhile, have been slow to catch up. At the first debate between Joe Biden and Donald Trump, Biden refused to say whether he’d expand the Supreme Court if Republicans confirm Barrett, insisting that the issue is a “distraction.” He’s wrong. Broaching the conversation about systemic reform after the election will be too late. And the coming Supreme Court term, which begins Monday, reflects just some of what’s at stake, this week, this month, and in the months ahead. The debate about structural changes to the court can’t wait until a hypothetical future in which everything has settled down. That future has already vanished.

On the docket just in the weeks to come, there is a blockbuster case that seeks to put a stake through the heart of the Affordable Care Act, in the midst of a pandemic—a challenge Barrett would seem to favor. Also on the docket is a case about a Philadelphia foster care agency that refuses to work with same-sex couples and claims that it constitutes religious discrimination if the city refuses to subsidize it with taxpayer dollars. In case that weren’t enough, the court may also hear a case that could strip same-sex couples of equal parenting rights. Moving from religion to guns, the court has been itching to expand the Second Amendment, and Barrett has made plain that she would go further than even most conservative judges to permit guns. The court will also hear a case that could kill off what’s left of the Voting Rights Act. Plus, there are multiple reproductive freedom cases hurtling toward the court, many from states that have already overruled Roe v. Wade in practice: outright abortion bans, sham regulations designed to shutter clinics, medically unnecessary restrictions on medication abortions. All that, plus an election in which the court may pick the next president and further restrict voting rights. And did we mention a census case that could strip congressional representation from states with large immigrant populations?