At an event commemorating the 30th anniversary of the McConnell Center in Louisville, Ky., Supreme Court Justice Amy Coney BarrettAmy Coney BarrettWith Breyer’s exit, all SCOTUS progressives will be women Manchin ‘anxious’ to confirm Breyer’s Supreme Court successor Senate GOP faces uncharted waters in Supreme Court fight MORE delivered a speech saying, “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks.”
This remarkable line came just days after Barrett joined a 5-4 majority upholding a Texas law seeking to overturn Roe v. Wade by empowering citizens to sue anyone who assists in an abortion after six weeks of pregnancy, even if it was the result of rape or incest. Justice Stephen BreyerStephen BreyerBriahna Joy Gray: Biden’s Supreme Court promise ‘bare minimum’ gesture to Black voters Luján stroke jolts 50-50 Senate On The Money — Layoff rate hit record low in December MORE wryly observed that the Texas case “wasn’t very good [timing] for my book,” which also maintains that the justices aren’t “junior league politicians.”
The Texas law is very unpopular. A Monmouth University poll found 54 percent opposed the court’s decision to keep the law in place; 70 percent disagreed with the provision allowing citizens to file lawsuits against anyone who assists in an abortion; and 63 percent want Roe v. Wade left alone. The court’s decision will soon be followed by a Mississippi abortion case it will hear in December that could spell the end for Roe v. Wade.
Justice Barrett’s visit to the McConnell Center and her introduction by a smiling Sen. Mitch McConnellAddison (Mitch) Mitchell McConnellTrump: ‘RINO’ Graham ‘wrong’ on pardoning Jan. 6 rioters Briahna Joy Gray: Biden’s Supreme Court promise ‘bare minimum’ gesture to Black voters GOP can’t escape Trump-fueled election controversies MORE (R-Ky.) highlights the contradiction between Barrett’s assertion that the court isn’t comprised of “partisan hacks” and the manner of her appointment.
McConnell loves to make up Senate rules that suit his purpose and void them when they don’t. In 2016, he invoked the so-called “Biden Rule,” saying that after the unexpected death of Justice Antonin Scalia any replacement must wait until the outcome of the presidential election. Merrick GarlandMerrick GarlandSenate Democrats call for DOJ crackdown on counterfeit masks NAACP calls for federal charges in fatal police shooting of Laquan McDonald Justice Breyer’s retirement showcases Biden’s limited ability to reshape Supreme Court MORE, President ObamaBarack Hussein ObamaMcConnell, Biden discuss Supreme Court pick First Latina named president of Harvard Law Review Court fight represents golden opportunity for Cruz, Hawley, Cotton MORE’s nominee to replace Scalia, didn’t even get a Senate hearing.
But when Justice Ruth Bader GinsburgRuth Bader GinsburgJustice Breyer’s retirement showcases Biden’s limited ability to reshape Supreme Court Senate GOP faces uncharted waters in Supreme Court fight Senators give glimpse into upcoming Supreme Court nomination battle MORE died in September 2020 while millions of Americans were voting, McConnell rushed Barrett’s appointment through the Senate just eight days before the election. Barrett was confirmed with no Democrat voting “yes,” the first time in 150 years every member of the minority party opposed a Supreme Court nominee. McConnell rejoiced, calling Barrett’s confirmation “a huge success for the country.”
In reality, it was a huge success for McConnell, who, like the infamous George Washington Plunkitt, “seen his opportunities and took ‘em.” On the night Ginsburg died, a jubilant President TrumpDonald TrumpTrump: ‘RINO’ Graham ‘wrong’ on pardoning Jan. 6 rioters Jan. 6 panel probing Trump’s role in effort to seize voting machines: report Overnight Energy & Environment — Virginia panel votes down Wheeler MORE told McConnell, “This is what Mitch was made for: filling the Supreme Court seats.”
Filling Supreme Court seats has been a long-term GOP project. Decades ago, the imprimatur of the American Bar Association was akin to the Good Housekeeping seal of approval for judicial nominees. No more. For Republicans, it’s the endorsement of the Federalist Society that matters most. Founded in 1982, the Federalist Society has as its sole aim identifying and endorsing conservative jurists. Its nominees have met with the enthusiastic approval of Republican presidents, who prefer the young, committed conservatives promoted by the Federalist Society, whose longevity assures them of a lasting judicial legacy.
Although voters terminated the Trump presidency in 2020, Trump’s appointment of three Supreme Court justices – each receiving the hearty endorsement of the Federalist Society – coupled with 227 other Trump-appointed federal jurists, creates a legacy that will persist well into the 21 century.
Prior to Barrett’s appointment, the court’s tentative 5-4 conservative majority often found itself at the mercy of Chief Justice John Roberts. Roberts is fond of saying he likes to “call the balls and strikes,” wary of having the court go too far in either direction. During the Obama administration, Roberts cast the deciding vote upholding ObamaCare, arguing that the individual mandate’s penalty for failing to purchase health insurance was a tax that was well within the jurisdiction of Congress.
During the Trump presidency, Roberts rejected the administration’s inclusion of a citizenship question on the U.S. Census because the agencies involved failed to provide their reasoning as required by law. Although Roberts sided with conservatives in important cases (notably gutting the pre-clearance clause of the 1965 Voting Rights Act and rejecting a constitutional right to gay marriage), he has remained sensitive to preserving the court’s public standing.
Back in 1832, Andrew Jackson memorably called out Chief Justice John Marshall following a Supreme Court decision he disliked: “John Marshall has made his decision; now let him enforce it.” As Jackson knew, the court has no means to enforce its decisions other than the public legitimacy accorded to it. Protecting that authority is important.
In 1974, President Nixon complied with a court order to turn over his incriminating Watergate tapes, knowing that failure to do so would seal his fate. (The tapes did that anyway.) After the contentious Bush v. Gore election when the Supreme Court ended the Florida vote count, Al GoreAlbert (Al) Arnold GoreThe Armageddon elections to come Overnight Energy & Environment — Starting from ‘scratch’ on climate, spending bill Equilibrium/Sustainability — Artificial camel nose sniffs out hidden oases MORE gave a gracious concession speech saying, “While I disagree with the court’s decision, I accept it.”
Barrett’s appointment and her ill-timed assertion of the court’s nonpartisanship has damaged one more institution of government. At the start of the court’s new term, public approval of the court fell to 49 percent, down from 66 percent last year. Paying attention to public opinion is important.
With the retirement of Sandra Day O’Connor in 2006, the court lost its last member who once held public office. Today the court would do well to have someone who was once elected to something and is sensitive to preserving the court’s legitimacy and public standing.
John Kenneth White is a professor of politics at the Catholic University of America. His latest book is “What Happened to the Republican Party?”