When four Republican Senators couldn’t find their spines, Majority Leader Mitch McConnell had the green light to fill Ruth Bader Ginsburg’s Supreme Court seat before her bench cushion was even cold. Flimsy excuses that this isn’t like Obama’s orphaned nomination of Merrick Garland do nothing to conceal his flex of raw political power. Although opinion polls show that most voters want the next President to fill the vacancy, McConnell embraces his unabashed hypocrite role with pride and a smirk.
Unless the White House COVID outbreak delays her confirmation, Judge Amy Coney Barrett will almost certainly be on the bench before the election on 3 November. So, it’s worth unpacking the rationale for this hyper-politicised process beyond ‘because we can’ and tease out what the long-term consequences might be of a US Supreme Court with a six to three conservative majority.
The media hot take was that a pre-election confirmation battle would excite Trump’s base by creating yet another divisive culture war moment centred on issues like abortion and gun rights. But that’s bad politics for two reasons. First, why vote for Trump if Barrett is already on the court? If you’re a staunch conservative who’s had it with Trump’s angry autocrat show, take the Supreme Court win and then independently cast your Presidential vote.
Dangling Barrett’s nomination as something to be taken up after the election could have energised Republicans while keeping a fallback option open. If Trump wins and Republicans retain the Senate, then there’s all the time in the world to confirm her. But even if there’s a Biden landslide, Republicans still have a window to confirm her during the Senate’s lame duck session this winter. Democrats would wail and gnash their teeth at that breach of protocol, but McConnell has shown time and time again that he’s shameless in his use of power.
The second reason a rushed confirmation is bad electoral politics is that eliminating abortion rights and gutting Obamacare are not vote winners, especially among women where Trump trails Biden by 20%. Only a third of voters believe in overturning Roe vs. Wade and support for Obamacare is stable at over 50%, so Democrats see an opportunity. They are studiously avoiding attacks on Barrett’s religious beliefs, as Senator Diane Feinstein enraged a lot of conservative Catholics by implying that Barrett’s strong faith could be disqualifying during her appellate court confirmation.
As a mother of seven and a ‘room parent, carpool driver, and birthday party planner’, Democrats also recognise that Barrett has a strong personal backstory. So, they’ve been laser focused since her nomination on the threat she poses to healthcare, as she could be on the bench when the court hears a critical Affordable Care Act case in November. Despite Trump’s ‘woman for a woman’ rhetoric, the fact is that most voters are smart enough to be more interested in Barrett’s jurisprudence than her gender.
Although rushing the nomination is bad electoral politics, Trump has been typically transparent that the votes he hopes to secure from having Barrett on the bench are not just from swing states but also in Washington DC. Trailing badly in the polls, he hopes legal challenges from a chaotic and contested election will ultimately land on the Supreme Court docket. At that point, the only votes Trump is interested in are the five justices that could help him stay in power.
It’s a better rationale for a rushed confirmation than the smokescreen of rallying the Trump base, but it’s still a long shot. Supreme Court justices are famously unbiddable when they’ve secured their lifetime appointment. A reliably conservative judicial record offers no guarantee that Barrett will genuflect to Trump and defend a stolen election. Chief Justice John Roberts has jealously protected the independence of the court and has delivered a string of surprise losses for Republicans, including the first Obamacare case that the court ruled on. Finally, if the election does indeed make it to the court, there’s no assurance that Barrett won’t immediately assert her independence by recusing herself as Attorney General Jeff Sessions did during the Mueller inquiry.
So why is Mitch McConnell spending precious political capital and jeopardising control of the Senate to install Barrett prior to the election? Another possible reason is to embody William F Buckley’s famous definition of conservatism that it should ‘stand athwart history, yelling stop!’. If Roe vs. Wade does come before the court again, Barrett is likely to vote against it as she is clearly a principled pro-lifer who is on the record as saying abortion is ‘always immoral’. But even if Barrett strikes down a slew of liberal judicial totems, those rulings probably end up being nothing more than speed bumps in American social history, although potentially traumatic for those impacted in the short run.
Lifetime appointments should mean that the justices don’t care what the population thinks and simply sit in their marble courthouse and interpret the constitution. But history shows that swimming against the tide of popular opinion tends to be temporary and that ultimately the court’s rulings come to reflect the broader will of country. Sometimes the justices’ hand is forced by Congress simply legislating in ways that are difficult to overturn, but often, like in the recent case of gay marriage, a legal escape hatch is found to reverse an earlier decision that is now clearly out of step with the zeitgeist.
The most famous example of an out-of-step court was during the Great Depression. In 1937, a strongly conservative court resisted Franklin D Roosevelt’s progressive, radical, and extremely popular New Deal programme. Faced with Roosevelt’s threat to ‘pack the court’ and expand it to 15 justices, the court blinked first and revised its opinions. As Barry Friedman, an NYU Law Professor observes, ‘the court can’t get too far out of step with public opinion before something happens to rein them in’.
Apart from the left-leaning Warren court of the 1960s, the Supreme Court has typically been more conservative than the country as a whole and has acted as a moderator of social change without truly blocking it. Power struggles between the court and Congress have been uncommon, precisely because the justices recognise that their long-term legitimacy would be undermined if the court becomes overly politicised. For example, even if the court does rule against Obamacare in its current form, the majority opinion will likely provide a legislative roadmap for replacing it with something that will pass the court’s scrutiny. So, it’s scaremongering to claim that Barrett’s confirmation would shape the fabric of American life for decades to come, particularly if the Democrats control both houses of Congress in 2021 and can legislate at will.
Which brings us to the real reason why Republicans are intent on ramming through Barrett’s appointment. The fact is she isn’t really Trump’s pick at all. Her candidacy was preordained, vetted, and shepherded by the Federalist Society, a network of conservative lawyers who have dominated federal judicial appointments under Trump, creating a legal-corporate complex of unprecedented power.
The Federalist Society was not founded to protect unborn children or even the right to bear arms. In 1972, a Virginia lawyer wrote a memo to the US Chamber of Commerce suggesting that businesses needed to take a more active role in shaping public policy and that they should start by influencing the views of impressionable young law students. By the early 1980s, future Supreme Court Justice Antonin Scalia (for whom Barrett clerked) was the first faculty advisor to the fledging ‘Federalist Society for Law and Public Policy Studies’. Over the last 40 years, the Federalist Society has trained a generation of conservative lawyers drawing on consistent and generous funding from the business community.
The Federalist Society’s Roe vs. Wade moment was the 2010 Citizens United vs. The Federal Election Commission case. That contentious ruling permitted unlimited corporate spending on direct political advocacy and proclaimed that American democracy was for sale to the highest bidder. Under the camouflage of being strict constitutionalists, the Federalist Society’s pro-business agenda is to roll back regulations, limit corporate liability, suppress labour unions, constrain the government’s role in service provision like healthcare, and maximise the political influence of the corporate sector. At its core, the Federalist Society wants to consistently put a finger on the scales of justice in favour of unfettered capitalism.
Barrett is a product of this movement, but that’s hardly unusual, as Federalist Society conferences now act as auditions for judicial appointments. Of the 51 Appellate Court judges appointed by Trump, 43 are current or former members of the society, as are all five conservative members of the Supreme Court. The Society’s Executive Branch capture was complete when its director, Leonard Leo, was effectively seconded to the White House to manage the shortlists for judicial appointments. In 2018, former Republican senator, Orrin Hatch, commented ‘some have accused President Trump of outsourcing his judicial selection process to the Federalist Society. I say, damn right!’.
Just like Justices Thomas and Kavanaugh, the outcry over the circumstances of Barrett’s appointment will slowly fade over time. In a close Presidential election, her vote could matter, but in a Biden landslide it won’t. She may be another conservative vote on hot button social issues, but over time the law will revert to the mean of public opinion. Ultimately, Mitch McConnell wants to act quickly and get Barrett on the court to guarantee that the money spigot remains open and that the pro-business agenda of the Federalist Society is the dominant ideology of the court for a long time to come.
The corrosive cancer of unlimited corporate funds in politics and the cash tsunami for special interest advocacy doesn’t bring millions onto the streets in protest, but it will continue to distort and undermine objective political debate in the United States.
In the short run, McConnell and Trump will get their new justice, the court will tilt to the right, and there’s likely to be run-ins if Democrats win the election.
In the long run, Barrett’s confirmation would highlight the need to get back to a Supreme Court whose primary purpose is, in John Roberts’ baseball analogy, ‘calling balls and strikes’ rather than legislating. Taking the randomness of judicial mortality off the table is also why court reforms like 18-year term limits aligned to the Presidential election cycle need to be considered. So, even if Barrett is confirmed in the next few weeks, don’t expect the US Supreme Court to be out of the headlines anytime soon.