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Congress may look at judicial reform in 2021.


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This story is part of Elections 2020, CNET’s coverage of the run-up to voting in November.

The Supreme Court is getting a new justice, after the Republican-led Senate confirmed Amy Coney Barrett on Monday with a 52-48 vote, giving the highest court in the US a 6-3 conservative majority that’s expected to affect American law for decades. The seat was filled after the death of Justice Ruth Bader Ginsberg, a “warrior for gender equality and an unexpected pop culture icon,” on Sept. 18 at age 87 from cancer, after serving on the Supreme Court for 27 years.

While Barrett’s confirmation continues the court’s shift to the right, it may only be the tip of the iceberg as questions gather about other changes that could affect the federal judiciary.

Could the Supreme Court overturn well-established laws on abortion? Would new rules change how long a Supreme Court justice could serve? And if former Vice President and Democratic candidate Joe Biden wins the election, could he appoint more justices to make the Supreme Court less right-leaning? 

We’ll walk you through a snapshot of the biggest changes that could — but won’t necessarily — happen.


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Supreme Court could become more conservative for decades

Barrett’s induction into the Supreme Court would theoretically give the 6-3 conservative majority the power to pass, block, amend or even overturn laws where votes are divided along conservative or progressive interests.

Once confirmed, justices serve until they retire or die, which means that with current practices, the current Supreme Court makeup would remain in place until a seat becomes vacant. The president at the time nominates the next justice candidate, usually along partisan lines.

The US Constitution requires judges to not take part in, or recuse themselves, from cases where they have a financial interest in the case’s outcome or where there is a strong possibility that the judge’s decision will be biased. Associate Justice Barrett as an appellate court judge has recused herself from cases where she perceived a conflict, but during her recent Senate hearings Barrett refused to say if she would recuse herself from a case involving the Affordable Care Act because she is being nominated by President Donald Trump, who is seeking to overturn the law.

Could the Supreme Court overturn the Roe v. Wade abortion protections?

The topic of overturning the landmark Supreme Court Roe v. Wade 1973 decision became a hot-button issue after President Donald Trump nominated Barrett. In 2006, Barrett signed a statement opposing “abortion on demand” and calling for the end to Roe v. Wade.

During her recent Senate confirmation hearing, Barrett declined to give her views of Roe v. Wade. With several abortion-rights cases in the pipeline, the Supreme Court could give states more freedom to tighten abortion restrictions in the future, if any of the cases were to reach the Supreme Court.

The number of justices on the Supreme Court could potentially increase

As a response to the lightning-fast confirmation of Barrett eight days ahead of the US election, Democrats have raised the idea of expanding the number of Supreme Court justices from the current nine.

The practice, which is also referred to as “court packing,” would give the president at the time the opportunity to add justices to the bench. Again, the judge’s track record typically hews close to the leading party’s political values. In this case, supporters of this suggestion are hoping that Biden, if elected, would work toward adding progressive justices to reduce the strong conservative majority and that Congress would go along with it.

Only Congress has the power to change the size of the Supreme Court. The US Constitution establishes the Supreme Court, but it doesn’t set out how many justices make up the court. The number has changed over the years, from as few as five to as many as 10. The number of justices has remained at nine since the middle of the 1800s. But there are more recent examples at the state level, with at least 10 state legislatures attempting to change the size of their state courts in the last decade.

Biden has previously come out against adding justices to the court, but said this month that, if elected, he would establish a bipartisan group to examine the need for Supreme Court reforms.

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The outcomes of the Nov. 3 election could have ripple effects.


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Term limits for Supreme Court justices could come into sharper focus

Democrats and Republicans, including Supreme Court Chief Justice John Roberts, have both come out in support of examining term limits for Supreme Court justices. Justices currently have lifetime appointments. The idea of term limits for the highest level of judiciary is not new. Nearly all states have set a term length for state supreme court justices. 

Proponents believe that term limits could make the justice selection process less divisive and polarized because judges would rotate more frequently and presidents would be guaranteed appointments during a four-year administration. 

For example, one idea would stagger 18-year term limits, giving each president the chance to nominate two justices over the course of a four-year term. Three Representatives in the House introduced legislation this fall that would set term limits with an appointment schedule. The goal, according to Rep. Don Beyer,  one of the sponsors of the bill, would be to “eliminate the arbitrary nature of Supreme Court vacancies by creating a regular, fair process that doesn’t reshape the Court for decades at a time.” Following their term, justices could serve on the lower courts.

According to the nonpartisan policy institute Center for American Progress, “Regular appointments … would hopefully make the confirmation process less political. For example, there would be less intense pressure on each individual pick because there would be an understanding that winning the presidency comes with the appointment of two justices. Moreover, creating a more regular appointment process would ensure that the court better reflects the broader public.”

Congress could examine adding more judges to the lower courts

Another way that some have suggested to rebalance the federal judicial system would be to add more judges to the lower courts, which could affect which legal cases would make it to the Supreme Court. 

Despite an increase in caseloads, Congress has not expanded the number of federal courtships since 1990 and some Democrats are calling for “structural court reforms” to add to the number of judicial positions there.

The nonpartisan judicial group Fix The Court lays out a plan for adding new judges every two years over two decades to ease caseloads and expand the lower court system.

There are many ways the situations could play out. In the meantime, to help you vote in an unprecedented election during a pandemic, here’s what you need to know about voting in this election, how to make sure your vote counts and how to track your ballot online.

source: cnet.com

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