Recently, some on the right have argued that Vice President Harris is the only way to save democracy. Relatedly, David French has said that voting for Harris is “to save conservatism.” French’s essay makes no mention of Senator Schumer’s nuclear bill, which would effectively overturn statutory decisions and strip the Supreme Court of its power to review the law. In an interview, French asked Justice Gorsuch about “reforming” the Supreme Court, but the issue did not seem to move French. The only way to save democracy would be to destroy the independence of the Supreme Court.
Perhaps French could block Supreme Court “reform” for at least a few years by electing Harris but publicly stating that Congress should remain in Republican hands. But supporting Harris without expressing a view on the current state of Congress would almost guarantee that the filibuster would be destroyed and jurisdictional divestitures and court expansions would be passed. The American Bar Association has recently endorsed a series of “democracy” reforms but, as far as I know, has been silent on jurisdictional divestitures. As Justice Thomas likes to say, we will regret crippling the last independent branch of government.
Incidentally, Harris served as Attorney General of California for nearly six years before becoming a Senator. By my count, she signed about 50 Supreme Court briefs, a combination of review briefs, merit briefs, and amicus briefs. Few presidential candidates have such a detailed record on constitutional law. I think it’s useful to take a quick look at those briefs to provide an overview of how President Harris views the Constitution and the Supreme Court.
2016
- Joined blue-state amicus brief in Whole Woman’s Health v. Cole (abortion)
- Led blue-state amicus brief in Zubik v. Burwell (mandatory contraception) case
- Lead blue state amicus brief in Murr v. Wisconsin (Expropriation Clause)
- Joined blue state amicus brief in Czyzewski v. Jevic Holding Corp. (bankrptucy)
2015
- Joined blue state amicus brief in Arizona Legislature v. Arizona Independent Redistricting Commission (Redistricting) litigation.
- Joined blue state amicus brief in King v. Burwell (ACA “pure sham” vs. “sham”);
- Davis v. Ayala (Habeas Corpus) – Brief Summary of Argument on the Merits
- Joins Democratic amicus brief in Michigan v. Environmental Protection Agency (Clean Air Act) case
- Joined blue state amicus brief in Obergefell v. Hodges (same-sex marriage) case
- Friedrichs v. California Teachers Association Merit Summary (Union Dues)
- In Evenwel v. Abbott (redistricting), he joined an amicus brief for blue states.
- Single amicus brief in Fisher v. University of Texas (affirmative action)
- Joins blue-state amicus brief in United States v. Texas (DAPA)
2014
- Joins blue-state amicus brief in Utility Air Regulatory Group v. EPA (Clean Air Act) case
- Lead blue-state amicus brief in Sebelius v. Hobby Lobby Stores, Inc. (contraceptive mandate)
- Riley v. California (cell phone searches) brief
- Amicus brief in Armstrong v. Exceptional Child Center, Inc. (a civil action against Medicaid)
- In Ohio v. Clark (Confrontation Clause), he joined the amicus briefs of both the red and blue states.
- Led amicus briefs for both Republican and Democratic states in City of Los Angeles v. Patel (warrantless searches)
- He joined the blue-state amicus brief in the case Texas Housing and Community Department v. Inclusive Communities Projects, Inc. (Fair Housing Act and Disproportionate Impact).
2013
- Lead amicus brief for both Republican and Democratic states in Maryland v. King (DNA testing)
- He joined a (predominantly) Democratic state amicus brief in FTC v. Watson Pharmaceuticals, Inc. (Patent).
- Joins blue-state amicus brief in Shelby County, Alabama v. Holder (Voting Rights Act) case
- Hollingsworth v. Perry (Same-Sex Marriage) Case Brief
- Joined blue-state amicus brief in U.S. v. Windsor (Defense of Marriage Act)
- Lead blue-state amicus brief in American Trucking Associations v. City of Los Angeles (preemption)
- Joins blue state amicus brief in ICWA case
- Led amicus brief for (mostly) Democratic states in Kansas v. Cheever (self-incrimination)
- Joined red and blue state amicus briefs in Burt v. Titlow (ineffective cooperation of counsel).
- He joined amicus briefs from both Republican and Democratic states in the case of State of Mississippi v. AU Optronics, Inc. (relatives).
- Led blue-state amicus brief in Schuette v. Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality at All Costs (state constitutional amendment banning affirmative action)
- Led the blue-state amicus brief in Northwest, Inc. v. Ginsberg (ADA)
- Brown v. Plata (Prison Overcrowding) – Brief summary of arguments on the merits
- Fernandez v. California (Warrantless Search) Case Brief
- Joined blue-state amicus brief in Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. (housing discrimination)
- Joined blue-state amicus brief in McCullen v. Coakley (abortion buffer zones)
- Navarette v. California (Vehicle Search) Case Brief
- He served as amicus curiae on behalf of Democratic states in Harris v. Quinn (mandatory union dues).
2012
- Joined blue-state amicus in HHS v. Florida (constitutionality of the individual mandate)
- Lead amicus brief for blue states in NFIB v. Sebelius (severability of individual obligations)
- Joined blue-state amicus in Magner v. Gallagher (Fair Housing and Disproportionate Impact)
- Joined blue-state amicus brief in Arizona v. United States (Immigration, SB 1070)
- Johnson v. Williams (federal habeas corpus) brief summary
- Sole amicus curiae in Fisher v. University of Texas at Austin (affirmative action)
- Joined blue-state amicus brief in Federal Trade Commission v. Phoebe Putney Health System, Inc. (Eleventh Amendment)
- Led a (mostly) blue state amicus brief in Koontz v. St. Johns River Water Management District (enforcement and monetary awards)
2011
- Led amicus briefs for both Democratic and Republican states in Bullcoming v. New Mexico (Confrontation Clause)
- Joined blue and red state amicus briefs in Davis v. United States (exclusionary rule)
- Joined blue and red state amicus briefs in PLIVA, Inc. v. Mensing (drug labeling) case
- Joined an amicus brief on behalf of blue states in American Electric Power v. Connecticut (Clean Air Act)
- Douglas v. Southern California Center for Independent Living (Medicaid Case)
- Martel v. Clair (Ineffective Assistance in Habeas Corpus Cases)
- Joining blue state amicus briefs in First American Financial Corporation v. Edwards (suit or controversy requirement)
- He joined blue and red state amicus briefs in Williams v. Illinois (Confrontation Clause).
- Joined blue and red state amicus briefs in PPL Montana, LLC v. Montana (navigable waters)
- Joined blue-state amicus brief in Freeman v. Quicken Loans, Inc. (RESPA)
(There may be a few errors here and there, but I think my list is pretty complete.)
In summary, Harris filed a brief in support of abortion access (Overall Female Health), against pro-life demonstrators at the clinic (McCarren v. Coakley), support for making contraception mandatory for private employers (Hobby Lobby) and religious nonprofits (Zubik/Little Sister of the Poor), opposed immigration cases in Arizona and Texas, and supported mandatory union dues.Harris and Friedrichs), opposed the intervener position in Proposition 8 (Hollingsworth), supported the constitutional right to same-sex marriage (Obergefell and Windsor), who opposed both challenges to Obamacare (NFIB and king), Clean Air Act (Michigan and AEEP), supported affirmative action policies (Fisher and Schutte), and upheld broad enforcement of disproportionate impact lawsuits (Inclusive Community, Mount Holly, and Magnar), and the outdated Voting Rights Act coverage formula (Shelby County). I haven’t read her accounts of the 9th Circuit and the California court system in detail, so there must be more I’ve missed. You could also look at what questions she asked during the confirmation hearings of Justices Gorsuch, Kavanaugh, and Barrett.
Knowing everything we know, there’s no way that sending Harris to the White House would “save conservatism.”
