On October 26, 2020, when celebrating Amy Coney Barrett’s confirmation to the Supreme Court, Senate Republican Leader Mitch McConnell (Kentucky) said, “Much of what we’ve done over the last four years will be undone in the next election.” But he added, “They’re not going to be able to do much about this for a long time to come.”
So it was no surprise that McConnell immediately condemned President Biden’s proposal to reform the Supreme Court.
“Dead on arrival,” McConnell said.
He is the architect of an extreme Supreme Court, even by fair standards, whose overwhelming majority has trampled on long-standing precedent protecting constitutional rights and the prerogatives of other branches of the federal government, and of state and local governments.
The court has also become an ethical nightmare because of previously undisclosed multi-million dollar gifts from right-wing donors, potential tax evasion and potential rebel flag-waving.
Far from the “independent judiciary” he proclaimed, this extremely corrupt court is McConnell’s greatest triumph and personal plaything. He cannot afford to miss the opportunity to return to the scene of his triumph.
McConnell begins his argument with the false claim that “for decades, the court has been a reliable ally of the left and its policy objectives.”
The United States established a conservative Supreme Court in 1969. At the time, President Richard Nixon had promised to shift the Supreme Court to the right in response to the liberal Warren Court’s rulings, and he nominated and confirmed four justices in less than three years.
Over a period of 25 years, from 1969 to 1993, Republican presidents nominated and the Senate confirmed 10 Supreme Court justices.
Democrats have undoubtedly disagreed with some of the court’s rulings over the years, with Republican-appointed judges, but the court has maintained popular support.
Several justices, including Harry Blackman, John Paul Stevens, and David Souter, turned out to be surprisingly liberal. Others, including Lewis Powell, Sandra Day O’Connor, and Anthony Kennedy, turned out to be moderates. William Rehnquist, who was much more conservative than the others, turned out to be a generally comradely chief justice who respected precedent.
These judges also had legitimacy because they had been confirmed through a thorough and rigorous confirmation process, as was the case with those nominated by Bill Clinton, George W. Bush, and Barack Obama. Rehnquist, in particular, opposed civil and individual rights established from the 1950s through Roe v. Wade in 1973, but those rights were not eradicated.
But the Supreme Court, with its careful judiciary and judges who have proven their independence, especially after being appointed, has been anathema to many powerful groups.
The Christian Right, which has been a leader in restricting abortion, the Republican Party’s corporate donor base that dislikes government regulation, and the Federalist Society, which has led a long fight to take control of the court and decisively shift it to the right, have all been factors in the court’s ideological shift.
And McConnell did them a huge favor by blocking the Senate from considering President Obama’s nomination of Merrick Garland for 10 months in 2016, on the absurd pretext that it was an election year. This was in stark contrast to his zeal in pushing through the confirmation of Amy Coney Barrett in 2020, just eight days before an election Trump likely would lose. It was against this backdrop of inglorious history that McConnell criticized Biden’s proposal for Supreme Court term limits, saying it would “strike a dangerous blow to the Senate’s advisory and consenting power.”
No one has done more damage to the Senate’s advisory and consent power than McConnell, who has personally obstructed the last five Supreme Court confirmation battles while simultaneously projecting his actions onto Democrats, blaming them for every escalation in the judicial wars.
McConnell wrote that Biden “seeks to weaken the only independent branch of the federal government with the power to protect individual Americans from the whims of the executive branch and the tyranny of the legislative majority.”
McConnell, who has been the longest-serving Senate leader in history, clearly does not view the political branches of government with such self-critical contempt. It is simply part of McConnell’s plan to protect the Supreme Court from the barrage of criticism over its radical decisions on abortion, guns, affirmative action, church and state, and government regulation.
McConnell rightly points out that Alexander Hamilton supported lifetime appointments in The Federalist No. 78 to ensure the independence of judges. Of course, in 1787, life expectancy was much shorter, and since then, every other constitutional democracy in the world has imposed age or term limits on its highest court judges.
McConnell failed to mention that Hamilton famously considered the judiciary to be the “least dangerous” branch, “one that has no influence over the sword or the purse.”
Since Marbury v. Madison, when the Court granted itself the power to invalidate democratically passed laws, the “least dangerous faction” has become the most dangerous and least democratic, with justices imposing their ideological views in ways that are difficult to refute.
“We the People” are not obligated to ignore real-world evidence of harm to constitutionally protected rights or to the proper functioning of government.
“History will settle all the accounts,” McConnell mused in a philosophical conversation last February. For McConnell, the reckoning could be just around the corner.
If Kamala Harris wins, it will be largely a result of McConnell’s legacy: creating an extremist court whose rulings will lead millions of angry Americans to vote for a president who will have the power to appoint judges who will end the reign of reaction.
Ira Shapiro is a former Senate staffer and trade ambassador in the Clinton administration. He has written three books about the U.S. Senate, the most recent of which is Betrayal: How Mitch McConnell and Senate Republicans Abandoned America (2022).
