Recently, a number of people on the right have endorsed Vice President Harris as the only way to save democracy. Relatedly, David French, says he is voting for Harris “to try to save conservatism.” Not mentioned in French’s essay is the Senator Schumer’s nuclear bill, which would effectively overrule a decision by statute, and strip the Supreme Court of jurisdiction to review that law. French had asked Justice Gorsuch about Supreme Court “reform” during an interview, but the issue apparently did not move French. I suppose the only way to save democracy is to destroy the independence of the Supreme Court.
Perhaps if French came out and said we should elect Harris, but keep the Congress in Republican hands, that would forestall SCOTUS “reform,” at least for a few years. But an endorsement of Harris, without opining on the state of Congress, all but ensures the filibuster is destroyed and jurisdiction striping and/or Court packing will pass. The American Bar Association recently endorsed a suite of “democracy” reforms, but as best as I can tell, has been silent on jurisdiction stripping. As Justice Thomas often repeats, we will come to regret crippling the last independent branch of government.
On that note, Harris spent about six years as Attorney General of California before becoming a Senator. By my count, she signed about fifty Supreme Court briefs–a mix of cert-stage briefs, merit-stage briefs, and amicus briefs. It is rare to have a presidential candidate with such a detailed record regarding constitutional law. I think it is useful to walk through these briefs to provide a sketch of how a President Harris would view the Constitution and the Court.
2016
Joined blue state amicus brief in Whole Woman’s Health v. Cole (abortion) Led blue state amicus brief in Zubik v. Burwell (contraceptive mandate) Led blue state amicus brief in Murr v. State of Wisconsin (takings clause) Joined blue state amicus brief in Czyzewski v. Jevic Holding Corp. (bankrptucy)
2015
Joined blue state amicus brief in Arizona State Legislature v. Arizona Independent Redistricting Commission (redistricting) Joined blue state amicus brief in King v. Burwell (ACA “pure applesauce” and “jiggery-pokery”) Merits brief in Davis v. Ayala (habeas) Joined blue state amicus brief in Michigan v. Environmental Protection Agency (Clean Air Act) Joined blue state amicus brief in Obergefell v. Hodges (same-sex marriage) Merits Brief in Friedrichs v. California Teachers Association (union dues) Joined amicus brief of blue states in Evenwel v. Abbott (redistricting) Solo amicus brief in Fisher v. University of Texas (affirmative action) Joined blue state amicus brief in United States v. Texas (DAPA)
2014
Joined blue states amicus brief in Utility Air Regulatory Group v. Environmental Protection Agency (Clean Air Act) Led blue state amicus brief in Sebelius v. Hobby Lobby Stores, Inc. (contraceptive mandate) Merits brief in Riley v. State of California (search of cell phone) Amicus brief in Armstrong v. Exceptional Child Center, Inc. (private cause of action for Medicaid) Joined amicus brief of red and blue states in Ohio v. Clark (confrontation clause) Led amicus brief of red and blue states in City of Los Angeles v. Patel (warrantless search) Joined amicus brief of blue states in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc (Fair Housing Act and disparate impact)
2013
Led amicus brief of red and blue states in Maryland v. King (DNA testing) Joined (mostly) blue state amicus brief in Federal Trade Commission v. Watson Pharmaceuticals, Inc (patents) Joined blue state amicus brief in Shelby County, Alabama v. Holder (Voting Rights Act) Merits Brief in Hollingsworth v. Perry (same-sex marriage) Joined blue state amicus brief in United States v. Windsor (Defense of Marriage Act) Led blue state amicus brief in American Trucking Associations, Inc. v. City of Los Angeles (preemption) Joined amicus brief of blue states in Adoptive Couple v. Baby Girl (ICWA) Led amicus brief of (mostly) blue states in Kansas v. Cheever (self-incrimination) Joined amicus brief of red and blue states in Burt v. Titlow (ineffective assistance of counsel) Joined amicus brief of red and blue states in Mississippi v. AU Optronics Corp. (parens patriae) Led amicus brief of blue states in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (state constitutional amendment to prohibit affirmative action) Led amicus brief of blue states in Northwest, Inc. v. Ginsberg (ADA) Merits brief in Brown v. Plata (prison overcrowding) Merits brief in Fernandez v. California (warrantless search) Joined amicus brief of blue states in Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. (housing discrimination) Joined amicus brief of blue states in McCullen v. Coakley (abortion buffer zone) Merits brief in Navarette v. California (vehicle search) Led amicus brief of blue states in Harris v. Quinn (mandatory union dues)
2012
Joined amicus of blue states in HHS v. Florida (constitutionality of individual mandate) Led amicus brief of blue states in NFIB v. Sebelius (severability of individual mandate) Joined amicus of blue states in Magner v. Gallagher (Fair Housing Act and disparate impact) Joined amicus brief of blue states in Arizona v. United States of America (Immigration, SB 1070) Merits brief in Johnson v. Williams (federal habeas) Sole amicus in Fisher v. University of Texas at Austin (affirmative action) Joined amicus brief of blue states in Federal Trade Commission v. Phoebe Putney Health System, Inc. (Eleventh Amendment) Led amicus brief of (mostly) blue states in Koontz v. St. Johns River Water Management District (exactions and monetary payments)
2011
Led amicus brief of blue and red states in Bullcoming v. New Mexico (Confrontation Clause) Joined amicus brief of blue and red states in Davis v. United States (exclusionary rule) Joined amicus brief of blue and red states in PLIVA, Inc. v. Mensing (drug labeling) Joined amicus brief of blue states in American Electric Power Company Inc. v. State of Connecticut (Clean Air Act) Merits brief in Douglas v. Independent Living Center of Southern California, Inc. (cause of Action for Medicaid suits) Merits brief in Martel v. Clair (ineffective assistance in capital habeas case) Joined amicus brief of blue states in First American Financial Corporation v. Edwards (case or controversy requirement) Joined amicus brief of blue and red states in Williams v. Illinois (confrontation clause) Joined amicus brief of blue and red states in PPL Montana, LLC v. State of Montana (navigable waters) Joined amicus brief of blue states in Freeman v. Quicken Loans, Inc. (RESPA)
(I may have made a few errors here or there, but I think my list is substantially complete.)
To summarize, Harris filed brief in support of abortion access (Whole Woman’s Health), in opposition to pro-life demonstrators at clinics (McCullen v. Coakley), in support of the contraception mandate for private employers (Hobby Lobby) and religious non-profits (Zubik/Little Sisters of the Poor), opposed immigration-related cases involving Arizona and Texas, favored compelled payment of union dues (Harris and Friedrichs), opposed standing for intervenors in Prop 8 case (Hollingsworth), favored a constitutional right to same-sex marriage (Obergefell and Windsor), opposed both challenges to the Affordable Care Act (NFIB and King), favored broad reading of the Clean Air Act (Michigan and AEP), supported affirmative action policies (Fisher and Schuette), favored broad enforcement of disparate impact suits (Inclusive Communities, Mount Holly, and Magner), and supported obsolete Voting Rights Act coverage formulas (Shelby County). I did not go through her briefings in the Ninth Circuit and the California court systems, so I’m sure I missed some more. You can also see the kinds of questions she posed to Justices Gorsuch, Kavanaugh, and Barrett during their confirmation hearings.
Knowing all that we know, I struggle to see how putting Harris in the White House would “save conservatism.”
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