While celebrating the confirmation of Amy Coney Barrett to the Supreme Court on Oct 26, 2020, Senate Republican Leader Mitch McConnell (Ky.) said, “A lot of what we have done over the past four years will be undone sooner or later by the next election." But, he added, “They won’t be able to do much about this for a long time to come.”
So it was inevitable that McConnell would instantly offer a rebuke of President Biden’s Supreme Court reform proposals.
“Dead on arrival,” said McConnell.
He is, by any fair measure, the architect of the extreme Supreme Court whose supermajority has run roughshod over long-standing precedents that protected constitutional rights and the prerogatives of other branches of the federal government, as well as state and local governments.
The court has also become an ethical nightmare of millions of dollars in previously undisclosed gifts from right-wing donors, possible tax evasion and potentially insurrectionist flag-waving.
Far from the “independent judiciary” he proclaims it to be, this extreme and corrupt court is McConnell’s greatest triumph and personal pull toy. He can’t resist the chance to return to the scene of his victory.
McConnell starts his argument by falsely claiming that “for decades, the courts were a reliable ally of the left and its policy aims.”
America had a conservative Supreme Court beginning in 1969 when President Richard Nixon, who had pledged to move the court to the right in reaction to the rulings of the liberal Warren Court, nominated and had four justices confirmed in less than three years.
From 1969 to 1993, a full quarter century, Republican presidents nominated, and the Senate confirmed, 10 consecutive justices.
Democrats undoubtedly disagreed with some of the court’s decisions during that long period of Republican-appointed justices. Nevertheless, the Supreme Court maintained public support.
Several of these justices, Harry Blackmun, John Paul Stevens and David Souter, proved to be surprisingly liberal. Others, such as Lewis Powell, Sandra Day O’Connor, and Anthony Kennedy, proved to be moderate. William Rehnquist, much more conservative than the others, turned out to be a collegial chief justice who by and large respected precedent.
These justices also had legitimacy because they were confirmed through a thorough, searching confirmation process, which continued to be the case for nominees made by Bill Clinton, George W. Bush and Barack Obama. While Rehnquist in particular was opposed to the civil and individual rights established from the 1950s through Roe v. Wade in 1973, they were not uprooted.
But a judicious Supreme Court, especially one that contained justices who demonstrated independence once appointed, was anathema to many powerful groups.
The Christian Right committed to restricting abortion, much of the Republican corporate donor base that despises government regulation and The Federalist Society, which spearheaded the long battle to capture the court to move it decisively to the right, were all factors in influencing the court’s ideological change.
And McConnell delivered for them, big time when he prevented the Senate’s consideration of President Obama’s nomination of Merrick Garland for 10 months on the specious grounds that it was an election year in 2016. This contrasted sharply with his zeal to ram through the confirmation of Amy Coney Barrett in 2020, eight days before an election that Trump seemed likely to lose. It is before the backdrop of this ignominious history that McConnell criticizes Biden’s proposal for Supreme Court term limits on the grounds of the “dangerous blow it would deal to the Senate’s power of advice and consent.”
No one has done more damage to the Senate’s power of advice and consent than McConnell, who personally poisoned the last five Supreme Court confirmation fights while projecting his own behavior onto Democrats, accusing them of being responsible for every escalation of the judicial wars.
McConnell writes that Biden "proposes to hamstring the only independent branch of the federal government empowered to shield individual Americans from the whims of the executive and the tyranny of legislative majorities.”
McConnell, who has been a Senate leader longer than anyone in history, surely does not truly view the political branches of the government with such self-critical contempt. It’s just part of McConnell’s scheme to shield the Supreme Court from the torrent of well-deserved criticism of its radical decisions on abortion, guns, affirmative action, church and state and government regulation.
McConnell correctly points out that Alexander Hamilton expressed support for lifetime appointments for judges as a guarantee of their independence in The Federalist No. 78. Of course, life spans were much shorter in 1787, and since that time, every other constitutional democracy in the world has chosen to place age limits or term-limits on the judges of their highest court.
McConnell fails to mention that Hamilton famously conceived of the judiciary as “the least dangerous” branch with “no influence over either the sword or the purse.”
Since the days of Marbury v. Madison, when the court gave itself the power to strike down democratically passed laws, “the least dangerous branch” has become the most dangerous and least democratic, with the justices imposing their own ideological views in a way that is difficult to counteract.
“We the people” are not obligated to ignore the real-world evidence of the damage that the court is doing to the rights protected by the Constitution, or the proper functioning of our government.
Waxing philosophical this past February, McConnell mused: “History will settle every account.” For McConnell, the accounting may begin quite soon.
If Kamala Harris wins the election, it will be in large part a consequence of McConnell’s legacy — his creation of the extreme court, whose decisions will spur millions of outraged Americans to vote for a president who will have the power to appoint justices to end the reign of reaction.
Ira Shapiro is a former Senate staffer and Clinton administration trade ambassador. He is the author of three books about the U.S. Senate, the most recent of which is "The Betrayal: How Mitch McConnell and the Senate Republicans Abandoned America" (2022).
