"The quest to entrench political conservatism in the country’s highest court comes with a steep cost.
By The Editorial Board Oct. 26, 2020
What happened in the Senate chamber on Monday evening was, on its face, the playing out of a normal, well-established process of the American constitutional order: the confirmation of a president’s nominee to the Supreme Court.
But Senate Republicans, who represent a minority of the American people, are straining the legitimacy of the court by installing a deeply conservative jurist, Amy Coney Barrett, to a lifetime seat just days before an election that polls suggest could deal their party a major defeat.
As with President Trump’s two earlier nominees to the court, Neil Gorsuch and Brett Kavanaugh, the details of Judge Barrett’s jurisprudence were less important than the fact that she had been anointed by the conservative activists at the Federalist Society. Along with hundreds of new lower-court judges installed in vacancies that Republicans refused to fill when Barack Obama was president, these three Supreme Court choices were part of the project to turn the courts from a counter-majoritarian shield that protects the rights of minorities to an anti-democratic sword to wield against popular progressive legislation like the Affordable Care Act.
The process also smacked of unseemly hypocrisy. Republicans raced to install Judge Barrett barely one week before a national election, in defiance of a principle they loudly insisted upon four years ago.
The elevation of Judge Barrett to be the nation’s 115th justice was preordained almost from the moment that Justice Ruth Bader Ginsburg died last month. When she takes her seat on the bench at One First Street, it will represent the culmination of a four-decade crusade by conservatives to fill the federal courts with reliably Republican judges who will serve for decades as a barricade against an ever more progressive nation.
This is not a wild conspiracy theory. Mitch McConnell, the Senate majority leader and one of the main architects of this crusade, gloated about it openly on Sunday, following a bare-majority vote to move Judge Barrett’s nomination to the Senate floor. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election,” Mr. McConnell said. “They won’t be able to do much about this for a long time to come.”
That’s the perfect distillation of what this has been all about. It also reveals what it was never about.
It was never about letting the American people have a voice in the makeup of the Supreme Court. That’s what Mr. McConnell and other Senate Republicans claimed in 2016, when they blocked President Obama from filling a vacancy with nearly a year left in his term. As of Monday, more than 62 million Americans had already voted in the 2020 election. Forget the polls; the best indicator that Mr. McConnell believes these voters are in the process of handing both the White House and the Senate to Democrats was his relentless charge to fill the Ginsburg vacancy.
It was never about fighting “judicial activism.” For decades, Republicans accused some judges of being legislators in robes. Yet today’s conservative majority is among the most activist in the court’s history, striking down long-established precedents and concocting new judicial theories on the fly, virtually all of which align with Republican policy preferences.
It was never about the supposed mistreatment that Robert Bork, a Reagan nominee, suffered at the hands of Senate Democrats in 1987. That nomination played out exactly as it should have. Senate Democrats gave Judge Bork a full hearing, during which millions of Americans got to experience firsthand his extremist views on the Constitution and federal law. He received an up-or-down vote on the Senate floor, where his nomination was defeated by Democrats and Republicans together. President Ronald Reagan came back with a more mainstream choice, Anthony Kennedy, and Democrats voted to confirm him nine months before the election. Compare that with Republicans’ 2016 blockade of Judge Merrick Garland, whom they refused even to consider, much less to vote on: One was an exercise in a divided but functioning government, the other an exercise in partisan brute force.
How will a Justice Barrett rule? The mad dash of her confirmation process tells you all you need to know. Republicans pretended that she was not the anti-abortion hard-liner they have all been pining for, but they betrayed themselves with the sheer aggressiveness of their drive to get her seated on the nation’s highest court. Even before Monday’s vote, Republican presidents had appointed 14 of the previous 18 justices. The court has had a majority of Republican-appointed justices for half a century. But it is now as conservative as it has been since the 1930s.
Of all the threats posed by the Roberts Court, its open scorn for voting rights may be the biggest. In 2013, Chief Justice John Roberts wrote the lead opinion in the most destructive anti-voter case in decades, Shelby County v. Holder, which gutted the central provision of the Voting Rights Act and opened the door to rampant voter suppression, most of it targeted at Democratic voters. Yet this month, Chief Justice Roberts sided with the court’s remaining three liberals to allow a fuller count of absentee ballots in Pennsylvania. The four other conservatives voted against that count. In other words, with Justice Barrett’s confirmation the court now has five justices who are more conservative on voting rights than the man who nearly obliterated the Voting Rights Act less than a decade ago.
In 2015, when the Supreme Court ruled that the Constitution protected same-sex marriage, Justice Antonin Scalia angrily dissented. “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” he wrote.
The American people, who have preferred the Democratic nominee in six of the last seven presidential elections, are now subordinate to a solid 6-3 conservative majority on the Supreme Court.
Republicans accuse those who are trying to salvage the integrity and legitimacy of the Supreme Court with trying to change the rules or rig the game. Having just changed the rules in an attempt to rig the game, that’s particularly galling for them to say.
The courts must not be in the position of resolving all of America’s biggest political debates. But if Americans can agree on that, then they should be able to agree on mechanisms to reduce the Supreme Court’s power and influence in American life.
As Justice Scalia would put it, a democracy in which the people’s will is repeatedly thwarted by a committee of unelected lawyers is not a democracy at all."
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