Amy Coney Barrett was confirmed this evening as an associate justice on the United States Supreme Court. Her confirmation to a lifetime appointment comes just eight days before an election that could cast out the man who nominated her and many of the people who confirmed her. Barrett is just 48. Assuming she receives excellent socialized medicine—the kind to which she’s entitled as a federal employee and which she will soon take away from other Americans—she can be expected to wield power well into her 80s.
Donald Trump has now appointed as many Supreme Court justices as he’s had wives. Senate majority leader Mitch McConnell highlighted the generation-shaping effect this will have on the country. After the Republicans broke the Democrats’ last, desperate filibuster on Sunday, McConnell said, “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.”
McConnell’s statement is an amazing admission of guilt. In two sentences, he explained the entire Faustian bargain the Republican Party has made with Trump: Trump gets to wreck the country and ruin the Republican brand, potentially throwing the upcoming election to the Democrats, but McConnell and Co. get archconservative justices who will spend the next 30 to 40 years thwarting the liberal agenda and the will of a majority of the people. That deal works for McConnell because he believes he’s made elections unnecessary to the furtherance of the Republican political agenda. He means to use the courts to do that work.
The only question left for Democrats, should they win the election that McConnell has evidently already given up on, is whether they’re willing to prove McConnell wrong. McConnell’s strategy makes sense only if Democrats are too weak and fractured to do what is necessary to take back the Supreme Court should they win the current election. He is clearly betting they are. He is betting that the Democrats will spend all their time in power making cosmetic changes through popular legislation, without challenging the structure McConnell has fundamentally altered. Essentially, McConnell has locked the Democrats in a room with some paint cans and assumes Democrats will spend all their time trying to pick a color instead of trying to break the lock.
Democrats could break out of the bind he’s put them in. As I’ve written before (and before and before), Democrats could counter the corruption and damage done during McConnell’s reign by expanding the court and instituting reforms to make confirmation battles less political. By adding 10 or 20 justices, a smart court-expansion plan would make each individual justice less important and depoliticize the fight over their successors when they die. Democrats could then pass ethics reforms—reforms that would be judged constitutional by the new, expanded court—which could mandate the recusal of, say, a judge appointed in an election year from cases involving that election. And an expanded court would secure Democratic legislation to protect voting rights, making it unlikely that a Republican Party that speaks only to a white-supremacist base would ever control all of government again. McConnell’s “success” at blocking Barack Obama’s appointments and rushing Trump’s could go down in history as the inciting event for much-needed court reform, in much the same way that the 1857 Dred Scott decision was not the final victory for slavers but rather the last straw for abolitionists.
But instead of fighting Republicans for institutional control of the courts, establishment and elitist forces are already trying to make their peace with what McConnell has done. Joe Biden has announced that he will establish a commission to study court reform—with a “bipartisan group of constitutional scholars.” One such high-profile constitutional scholar, Harvard Law professor Noah Feldman, thinks a 6-3 Republican court should be maintained.
I cannot explain the elite and establishment resistance to court reform from Democrats without noticing that the people most reluctant to fix things tend to be cis-hetero white men. The issues on the chopping block in front of a 6-3 Republican court tend to be issues that do not directly affect the rights and dignity of these white men. These men will continue to be able to marry whom they want to. They will retain their reproductive rights. They will be allowed to vote and won’t have to wait all that long to do so. They will not be executed after receiving ineffective counsel. They will not be sent back to “where they came from.” Their children will not be kidnapped and thrown into a cage.
Whenever you hear a white guy, be he a constitutional “scholar” or otherwise, telling you that we don’t need to reform the courts, what you should hear is: “It is what it is.” You should read their callous disregard for the rights and liberties of other people between the lines of their platitudes about institutional respect and civility. Why in the hell would I care that the Supreme Court be maintained as a “legitimate” institution when that institution has been set against the very idea that my vote should matter and my life should have value? There is little McConnell (should he survive his zombie affliction) and the Republicans can do in 2024 or 2028 that is worse than what they’ve already done from 2014 (when McConnell took control of the Senate) through today. Sure, I suppose things can always get worse, but you’d have to be white not to see how bad things are now.
Court reform is not “popular” right now, according to the polls. I’d argue that is because most Democrats haven’t actually attempted to explain it to the American people, while those who have tend to center the argument on fellow cis-hetero white guys who stand to lose the least from a Republican-controlled courts. I can explain court expansion in a way that focuses on reform and not mere vengeance, if anybody is interested. If Biden’s commission wants to explain why this kind of court reform is necessary, as opposed to normalizing permanent Republican control of the courts, there is a lot of work it could do.
But even if I’m wrong, even if Biden’s commission can’t change people’s minds about this issue, it’s important to recognize that Republicans never even try to win hearts and minds for their Supreme Court machinations. When Republicans have power, they use it, polls be damned. Polls wanted to give Merrick Garland a hearing, but McConnell refused anyway. Polls ran counter to the confirmation of alleged attempted rapist Brett Kavanaugh, but McConnell did it anyway. Polls opposed replacing Ruth Bader Ginsburg before the election, but, once again, McConnell did it anyway. When it comes to conjuring an antidemocratic Supreme Court, McConnell does not care about democracy.
McConnell doesn’t think Democrats have the stomach for all that. Again, his actions—sacrificing the presidency and possibly even the Senate to seat Barrett—make sense only if he believes that Democrats are weak and will act weak even when they have power.
Democrats must call his bluff. They must punch the bully in the face. Otherwise, they’re going to spend the next generation being stuffed into a locker by Republicans on the Supreme Court. The only way to make Republicans stop is for Democrats to fight back. They’ll never respect us if we don’t.