In 2016, Senate Majority Leader Mitch McConnell (R-Ky.) made a cynical gambit: Instead of allowing President Barack Obama to fill a seat left open on the Supreme Court by Justice Antonin Scalia’s death, he refused to even hold a hearing on Obama’s nominee Merrick Garland. The power of a president to appoint a new justice ― one who could secure or shift the court’s political tilt ― became a central issue for conservatives. And eventual Republican nominee Donald Trump dutifully vowed to do GOP legal groups’ and religious voters’ bidding by appointing a conservative justice should they back him.
It worked as a motivating factor for voters. One in five Trump voters said the Supreme Court was the “most important” issue in their decision, according to exit polling. Those religious conservatives then turned out to support Trump, a thrice-married playboy who boasts about sexually assaulting women and pays hush money to his extramarital lovers, because he promised them judicial nirvana. Once Trump became president, he delivered by appointing two conservative stalwarts in Neil Gorsuch and Brett Kavanaugh in his first two years in office.
On Monday, he gave conservatives a third: Amy Coney Barrett, newly confirmed by the Republican-controlled Senate just eight days before the election, to the seat vacated by the death of liberal icon Justice Ruth Bader Ginsburg. The conservative legal movement has achieved its wildest dreams. Trump has now made three appointments to the Supreme Court, the most of any president since Ronald Reagan. The court now has a rock-solid 6-3 conservative majority. All six conservatives have been closely vetted by conservative legal movement leaders in an effort to prevent future ideological deviations. Most important, there are now enough conservatives on the court that even if one broke from orthodoxy, it wouldn’t matter.
Conservative activists are now free to press forward with the agenda they’ve pushed since the Reagan era: criminalize abortion, ban racial preference in school admissions and elsewhere, cripple the federal regulatory state, roll back voting rights, civil rights and campaign finance laws and grant greater and greater powers to corporations. Whether voters support it or not.
“A lot of what we’ve done over the last four years will be undone sooner or later by the next election,” McConnell taunted about Barrett’s confirmation on Sunday. “They won’t be able to do much about this for a long time to come.”
‘No More Souters’
This is the kind of control conservatives sought of the Supreme Court, the least democratically responsive branch of government, since Reagan swept into office in the 1980 election. Conservatives knew after the Reagan revolution that they would have to seize control of the courts in order to achieve their goals of overturning the New Deal economic and social welfare consensus and the mid-20th century rights revolution for racial minorities and women.
The Reagan White House started by establishing an ideological screening process for judicial nominees far stricter than that of Franklin Roosevelt, the last president to truly care about his nominees’ ideological commitments. The goal was to, “institutionalize the Reagan revolution so that it can’t be set aside no matter what happens in future presidential elections,” according to Reagan’s Attorney General Ed Meese, an architect of the conservative legal movement.
Meese and other conservative legal luminaries also founded the Federalist Society, a conservative debating club that served as a networking hub and a training ground for law school conservatives and beyond. The Federalist Society also served as a counterweight to the liberal American Bar Association by providing a group that could pass judgment on conservative criteria. Leonard Leo, the co-chairman of the Federalist Society, provided Trump with the Supreme Court nominee list that would help him win in 2016.
By the end of his two terms, Reagan had appointed half of the entire federal judiciary. Yet conservatives still rankled at the occasional heresies of Reagan-appointed conservative justices like Sandra Day O’Connor and Anthony Kennedy, who later angered religious conservatives by failing to overturn Roe v. Wade in the 1993 Planned Parenthood v. Casey case.
Even worse, was when President George H.W. Bush’s nominee David Souter defected to the liberal bloc. Souter’s treason stuck in the craw of conservatives and fueled the kind of control they sought over Trump’s appointees.
Thirty years after Souter’s nomination, conservatives have reached the mountaintop. In spite of, or perhaps because of, the fact that Trump has no deep ideological commitments, he handed control of his judicial nominations over to the conservative legal movement in order to help his election prospects. Since Trump took office, he has secured the kind of rock solid conservative majority the movement failed to win thanks to deviants like O’Connor and Kennedy and traitors like Souter.
Kavanaugh, Gorsuch and Barrett all came with strong endorsements from legal conservatives and a history of working within the Republican Party. Kavanaugh and Gorsuch have largely ruled with the conservative bloc with the only major deviation so far was Gorsuch’s strict textualist ruling in Bostock v. Clayton County that found the Civil Rights Act of 1964 to protect transgender individuals from discrimination. But the confirmation of Barrett, who is viewed more favorably by religious conservatives, makes it impossible for one deviation to change the outcome of a case.
An Anti-Democratic Future
One key to the conservative judicial activists’ strategy is to deflect over nominees’ views. At Barrett’s hearings, Republicans scoffed at the idea she would overturn Roe v. Wade, even though her past writings and work make her opposition to abortion clear. They did the same over whether or not she would vote to kill the Affordable Care Act. At her confirmation hearing, she refused to say whether or not Trump could unilaterally postpone the election or whether voter intimidation is a crime.
That partially stems back to Reagan nominee Robert Bork, whose 1987 confirmation hearings are still today bandied about by conservatives who insist Democrats accurately describing his views was tantamount to slander. Conservatives still resent Sen. Ted Kennedy’s (D-Mass.) speech accurately describing Bork’s previously stated opposition to Supreme Court precedents on civil rights and women’s rights and the role he played in executing Richard Nixon’s Saturday Night Massacre. Conservatives still rankle at the use of television advertising for the first time (in which I played the face of the American future) to counter a judicial nomination.
Despite the mythology that Bork was unfairly tanked by Democrats, his nomination failed in a 42-58 floor vote, with six Republicans voting against him because he was uniquely out of the American mainstream.
Unlike when Reagan appointed three justices to the Supreme Court, the president in power is highly unpopular. Reagan was president at a time when the conservative movement was ascendant after riding massive popular elections in 1980 and 1984. When Bush won in 1988, it was the first time a political party had won three straight presidential elections since Roosevelt and Harry Truman won five in a row.
Since then, Democrats have won the popular vote in six of the next seven elections. Due to the electoral college, however, Republicans won two of these elections unpopularly in 2000 and again in 2016. The winners of those two elections will have appointed five of the six conservative justices on the court. (George W. Bush’s Supreme Court appointments were made after he won a popular vote reelection in 2004, but he had the incumbency advantage due to his first unpopular election.)
Trump, who lost the popular vote by nearly 3 million votes, has been the most consistently unpopular president in the history of polling. There is scant chance that he wins the popular vote in 2020.
The Republican Party is fully aware that its agenda is unpopular, particularly with the rising electorate. That’s why it pursues laws and executive actions, like voter identification, reducing polling sites and skewing the Census, and judicial rulings, like allowing large scale voter purges and gutting the Voting Rights Act, to make it harder to vote and to reduce representation for demographic groups that disproportionately vote for the Democratic Party and are growing in numbers.
Secured by unpopular elections, the 6-3 conservative majority will now be able to provide an undemocratic check on the will of the majority. For decades to come, it will serve as a big, beautiful wall blocking progressive change from popularly elected Democratic administrations. A conservative court won’t just use theories of judicial restraint to block action to expand health care or deal with climate change, but also engage precedents to invalidate executive branch regulatory authority and set electoral rules to disfavor Democratic Party constituencies.
Where Meese sought to “institutionalize the Reagan revolution so that it can’t be set aside no matter what happens in future presidential elections,” Republicans today seek a retreat to the high ground of the courts to wield power.
It is a retreat from popular accountability for a political party increasingly out of step with voters who will inexorably take over American politics in the coming years as they age and older, more conservative voters pass away. Their six justices can now control the terms of American life and American elections seemingly immune from a democratic response.
That is at least what McConnell’s taunt suggests. But past efforts to enshrine a court majority to halt change have resulted in the nation’s democracy running into and over an undemocratic court standing in the way. Time will tell how long the conservative legal movement’s final victory lasts.