Once senators start demanding commitments on cases like Roe, other groups will demand similar litmus tests for cases like Obergefell versus Hodges, supporting same-sex marriage, or cases supporting environmental, disability or other rights. Conversely, while senators often speak of preserving such precedents, they have pressed nominees to commit to reversing cases like Citizens United. If forced to give such assurances in Senate hearings, justices could face later allegations of perjury if they changed their minds or voted differently on the court. Moreover, nominations would become a series of venal pledges of positions on the court to secure votes in the Senate.
For the court-packing scheme proposed by vice presidential candidate Sen. Kamala Harris (D-Calif.) and others to work, there must be some form of litmus test. Democrats have pledged to add six new justices to guarantee a court that will vote to uphold or overturn cases as expected. Absent such guarantees, court-packing is a futile exercise; the whole point is to force outcomes like voting to uphold Roe. This court-packing rationalization has reached truly Orwellian levels, with former White House counsel John Dean insisting that, by manufacturing a new ideological court majority, Democrats would “depoliticize” it.
Litmus-testing and court-packing would “honor” Ginsburg by destroying the court she loved.