Pundit: Potential Biden SCOTUS picks may be ‘eager to eschew stare decisis’

Polling data published by Pew Research in 2016 found that the Supreme Court remained a significant issue for most Americans, with 65% of voters saying it was “very important” to them.

The upcoming election has many thinking once again about possible nominations to the nation’s highest court — and one of them is Reason senior editor Damon Root, who offered in a column published on Friday some bombshell predictions on what the Supreme Court might look like under a Biden–Harris administration.

“Eager to eschew stare decisis”

According to Root, Joe Biden, like President Barack Obama before him, would look for left-leaning justices to appoint to the nation’s highest court.

“It’s safe to assume that any Biden nominee will hold standard liberal legal views on hot-button issues like abortion and gay rights,” Root began in his Friday column.

He went on: “A Biden SCOTUS pick might also be eager to eschew stare decisis in favor of overturning recent ‘conservative’ precedents, such as the Supreme Court’s Second Amendment ruling in District of Columbia v. Heller (2008) and its First Amendment ruling in Citizens United v. Federal Election Commission (2010).”

District of Columbia v. Heller overturned Washington, D.C.’s handgun ban by recognizing an individual right to own firearms under the Second Amendment.

Citizens United v. Federal Election Commission, meanwhile, prohibited the government from restricting independent expenditures for political communications by corporations, including nonprofit corporations, labor unions, and other associations.

“The real wildcard is criminal justice,” Damon wrote for Reason Friday. “Just as Republican appointees to the federal bench are sharply divided in criminal justice cases, so too are their Democratic counterparts.”

Biden’s balance to strike

While some on the left would surely like to see former Obama administration Supreme Court nominee Judge Merrick Garland get another shot to ascend to the high court, Damon argues that doing so “would leave criminal justice reform advocates in the lurch.”

“If Biden wants to make criminal justice reformers happy, he might consider nominating federal Judge Paul Watford, who was rumored to be on Obama’s SCOTUS shortlist and who has stood out for his pro-Fourth Amendment rulings while serving on the U.S. Court of Appeals for the 9th Circuit,” he wrote.

Damon further noted that the liberal group Demand Justice has been lobbying for Biden to choose nominees from its list of candidates that excludes corporate lawyers.

“Barring ‘corporate lawyers’ from serving on SCOTUS would mean that Justice Sotomayor — who represented corporate clients earlier in her legal career — would never have been nominated for the seat she now fills,” Root concluded. “Biden will probably ignore that self-defeating litmus test.”

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