Why Latinos need Supreme Court reform

Even before the first full term of the Supreme Court under the Biden administration began this week, conservative justices were sounding defensive. In separate September speeches, Justice Amy Coney Barrett said that the court was not “a bunch of partisan hacks,” while Justice Clarence Thomas said that the media makes it appear as though justices rule based on “personal preferences.” Justice Samuel Alito pushed back against criticism of the court, criticism he said wrongly portrayed it “a dangerous cabal that resorts to sneaky and improper methods to get its ways.”

Despite such declarations, actions speak louder than words. The recent decisions by the court’s conservative majority have demonstrated a trend of partisanship that does not serve Latinos. If there is to be true justice for Latinos, the country’s largest minority group since 2003, the court needs to be reformed. The current conservative majority cannot be trusted to protect the civil and constitutional rights of Latinos.

One problem with the court is that it is not reflective of the public. Although Democratic candidates have won the popular vote in seven of the last eight presidential elections, Republicans have placed six justices on the court in lifetime appointments. It is questionable whether this group is equipped to make decisions impacting the lives of the county’s 62 million Latinos. With the exception of Justice Sonia Sotomayor, who is of Puerto Rican heritage, none of the justices has significant life experience with the issues faced by Latinos. Three of the justices were appointed by the most anti-Latino, anti-immigrant president in modern history.

The political leanings of the court’s conservatives are clearly present in their rulings. During the last administration, the conservative majority often showed deference to Trump’s executive actions. In February 2020, for example, the majority allowed a rule that limited the ability of low-income immigrants to enter the U.S., a decision that prompted Sotomayor to warn that the court was doing special favors for the Trump administration. Yet now that Biden is president, the court’s conservatives are aligning themselves against executive power. In August, the court’s conservatives rejected Biden’s federal eviction moratorium, putting millions of Latinos at risk of eviction during the pandemic — and they ordered the administration to reinstate the “Remain in Mexico” policy, which forces asylum-seekers to wait in dangerous conditions in Mexico until their claims can be processed.

In July, the court left Arizona’s voting restrictions in place, potentially disenfranchising many Latinos and emboldening other states to pass similar measures.

The new term holds more peril for Latinos. Consider that the court will hear cases on abortion and Second Amendment rights — and that majorities of Latinos support the right to legal abortion as well as stricter gun laws. The court will also decide whether Puerto Ricans are eligible for certain government benefits. Given that Harvard Law professor Michael Klarman calls this court “the most conservative court in almost 100 years,” there is little doubt how the conservatives will rule. The question is whether Americans will continue to accept the legitimacy of this unelected, insular group that is widely viewed as partisan. No wonder that President Biden has formed a commission to study possible court reforms.

Polling suggests that Latinos would be open to reforming the high court. A May 2019 poll by Quinnipiac University found that 63 percent of Latinos said that the Court is mainly motivated by politics, and 61 percent favored its restructuring. And this poll was taken before the controversial nomination of Amy Coney Barrett, whose confirmation was opposed by the major Latino advocacy groups. More recently, in September Quinnipiac polling found that only 38 percent of Latinos approved of the Supreme Court’s job performance, as the overall job approval of the court fell to an all-time low.

True, conservatives will view any attempt at court reform as “packing the courts.” But that process was already initiated by Sen. Mitch McConnell (R-Ky.) when he blocked President Obama’s nomination of Merrick Garland to the high court in 2016. It was continued with the rushed confirmations of Brett Kavanaugh and Amy Coney Barrett. Besides, court reform is not synonymous with adding justices; it could involve term or age limits.

The Supreme Court must be reformed because all Americans deserve a court that is impartial and consistent in its interpretation of the law. The rights of Latinos are at stake — and so is the integrity of the high court.

Raul A. Reyes is an immigration attorney and member of the USA Today Board of Contributors. A graduate of Harvard University and Columbia Law School, he is also a contributor to NBCNews.com and CNN Opinion. You can follow him on Twitter at @RaulAReyes, Instagram: raulareyes1.