Late Monday night, after the first day of Amy Coney Barrett's nomination hearings had wrapped up in Washington, a three-judge panel of the 5th Circuit Court of Appeals overturned a lower court and gave a green light to Texas Governor Greg Abbott's order limiting the number of drop-boxes for absentee ballots in the Lone Star State to one per county. The result is that big, urban counties where Democrats are competitive--Harris County (Houston), Dallas County, Tarrant County (Fort Worth), Bexar County (San Antonio) and Travis County (Austin)--will each have a single drop-box for between one and five million residents just like the 87 rural counties in Texas that have fewer than 10,000 residents.
The judges who issued the 3-0 ruling were all appointed by Donald Trump. Their average age is 49.7. One of them, James Ho, was profiled by NPR in a piece titled, "Legal Opinions Or Political Commentary? A New Judge Exemplifies The Trump Era." The panel found that Abbott's order had actually increased voters' access to the ballot box. Up is down in this packed federal judiciary.
As a result of Republicans' unprecedented blockade of Barack Obama's nominees, he was only able to appoint three judges to the 5th Circuit during his 8 years in office. Trump has appointed six in under four years. When Trump won the Electoral College, he tapped Ho--along with the other members of the panel that ruled on Monday night, Don Willett and Kyle Duncan--to fill three of the 116 vacancies on the federal bench that Mitch McConnell and his caucus had held open for the final years of Obama term in office.
With Barrett's confirmation barreling along, it's likely that the last guardrails will be removed from the nation's highest court. Chief Justice John Roberts' concern for the legitimacy of the institution will no longer be an effective constraint on a majority that includes Justices Barrett, Alito, Thomas, Gorsuch and Kavanaugh. Those judges are now poised to relitigate broad swaths of what had been long-settled law.
The last shreds of the Court's legitimacy as a politically neutral body will soon be torn apart. It will be the culmination of the GOP's long campaign to counter demographic headwinds by insulating itself from democratic accountability--through extreme gerrymandering, voter ID laws and other means of suppressing minority votes and turning the federal judiciary into a third political branch dominated by Republican appointees.
The result will be intolerable in a democratic republic, and if Democrats win the White House and Senate, the most pressing question they'll face is how a legitimate, democratically-elected government should handle a judicial branch packed with young, activist jurists with lifetime appointments to the bench and a clear hostility to every aspect of the Democrats' agenda. Something must break.
Joe Biden says he is "not a fan of court-packing," but a campaign is underway, Barrett hasn't yet been confirmed and if she is, it won't only be the left flank of the Democratic Party advocating for structural reform of the federal courts. There would be an intra-coalition debate if Dems find themselves with unified control next year, and with the Republicans' relentless destruction of the norms surrounding judicial appointments, ideas that used to be considered radical--like expanding the Court, or rotating justices back and forth from the appellate courts--are fast becoming mainstream, liberal propositions.
I favor expanding the Court in keeping with Republicans' philosophy that a party can and should do anything within the bounds of the Constitution to advance its agenda--or to create a deterrent against that kind of thinking. But that shouldn't be the end of the conversation. Last year, I wrote about a number of different potential reforms that would not only rebalance the courts over the near-term, but also lower the temperature of nominations in the future and in some cases, limit the judicial branch's power to veto laws enacted by the elected branches.
All of them carry some risk. But the danger of living in a country with entrenched rule by a far-right minority party is much greater.