Justice Amy Coney Barrett and Trump’s Place in History
The 45th president has now anointed more Supreme Court justices than either of his four predecessors.
By the time Amy Coney Barrett was sworn in as an associate justice of the Supreme Court on Monday, a popular reading of history had taken hold.
Mitch McConnell, the wily Senate majority leader, had played hardball. Democrats contended that he had filched the Court seat vacated by the death of Antonin Scalia in 2016. President Barack Obama, then the incumbent, had nominated a committed and revered moderate, Merrick Garland of the D.C. Circuit Court.
And by refusing to even hold hearings on Judge Garland, McConnell committed a political crime of the highest order, only compounded further this year by his lightning-speed confirmation of Barrett. Republicans had refused to hold hearings in an election year when it suited them, and it had suited them just fine as the days of the Trump presidency appeared to be drawing to a close.
But that, of course, is not how McConnell and company see it. Defenders of recent tactics point out that it was McConnell’s Democratic predecessor, Harry Reid, who sanded down the power of the filibuster — the maneuver whereby a 41-vote blockade could stymie Senate action. Had he not done so, all of President Trump’s picks for the highest court could have failed confirmation: Neil Gorsuch secured 54 votes in 2017, Brett Kavanaugh crawled through mud for his 50 votes in 2018, and Judge Barrett won 52 votes on Monday. In a recent feature on the Court and its politics, “Supreme Revenge” from Frontline, interviews with McConnell recalled an experience from the 1980’s: the thwarted nomination of Robert Bork, a vaunted conservative, through what McConnell saw as gangster tactics. Heading up that effort at the time was the Senate judiciary chair Joe Biden.
And even prior, those on the center-right like McConnell say they bore witness to a generation of judicial diktat. The Court on high found new rights, notably to privacy, and developed concepts such as “evolving standards of decency,” to remove from voters’ hands the tortuous topic of abortion, the matter of the death penalty (later re-imposed), and a whole host of other issues previously trusted to a purer democracy. The Court intervened necessarily in Brown v. Board of Education in the 1950’s, McConnell’s contingent says, which set up the country up for the civil rights confrontation of the next ten years. But the third branch of government then read the tea leaves wrong and saw for itself too large a mandate for it to take broader action. They took for granted the national consensus of the post-War years.
With Justice Barrett, McConnell finally feels he’s evened the scales, or come close. Barrett was sworn in at the White House by Justice Clarence Thomas. Conservatives see a figure in Thomas that represents the best of their project. He has a clear, originalist framework, and former clerks brag behind closed doors he puts on the fewest airs, with far more law clerks outside the Ivy League. Barrett will be the only justice without a degree from one of the Northeast old guard universities. It was an ominous selection for Democrats, however. They see a man in Thomas outside his intellectual depth (he almost never asks questions during oral arguments) and one who got away with sexual harassment (which he denies).
Democrats see nothing short of a menacing 6-3 conservative majority. But Republicans still laugh that off. Though there are six Republican-tapped justices on the court, the right still sees enemies behind every corner, reminded of Chief Justice John Roberts’ centrist rulings on healthcare, Justice Gorsuch’s libertarian streak on immigration, and the genuine unknown of a new justice. A Republican naming the justice is no guarantor of legal dominance, as the painful examples of David Souter and even Sandra Day O’Connor, the first female justice, still torment the right.
For abortion hardliners, there is a moral issue akin to a new abolitionism hanging in the balance. And relief may still be years or decades away, if ever. A demolition of Roe v. Wade, the landmark abortion case, is hardly a proposed amendment to the Constitution (far more frequently discussed in the 2000’s). It would not, as President Abraham Lincoln said of the Thirteenth Amendment, settle the absolute fate “of unborn millions to come” — at least not in states that elect to preserve the practice, as would be their prerogative under the new regime.
Indeed, even if the Court were to overturn Roe, which would be a convulsive reversal, abortion laws would merely revert to the states, with likely only a handful of states outlawing the practice. The right sees cultural liberalism as omnipresent on America’s coasts. The abolition analogy is tortured then, to the chagrin of the true believers. The idea that they are set to impose a reality straight out of A Handmaid’s Tale is news, particularly to them. So, that line of argument strikes many as tendentious electioneering, in a nation already so gripped by fear.
This new arrangement is, in some ways, old hat. Prior to Brown v. Board, it was progressives who warred with the Court. The judges across the city from the White House found Commerce Clause protections in every nook and cranny, stalling President Franklin Roosevelt’s sweeping economic agenda. It was probably only the so-called “switch in time that saved nine,” a term coined by funnyman Cal Tinney, that preserved the Court’s present table setting. Justice Owen Roberts suddenly found a legal basis for the minimum wage, and discussions of court packing were shelved until the 2020’s.
And, of course, the Court once displayed a shocking zeal for slavery. In the late 1850’s, seven justices voted in Dred Scott v. Sandford to preserve the extraordinary Fugitive Slave Act that endowed slave hunters federal protection— in free states. That ruling set up Lincoln and the nascent Republican Party for triumph in the 1860 presidential election. “A house divided against itself, cannot stand,” Lincoln said in 1858 in a Senate race in Illinois, which ended up being a pyrrhic defeat. “I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided.”
Trump gets in Barrett his third Supreme Court selection, and likely a reverential place in history for most Christian, religious conservatives. He has successfully placed more justices on the court in just one term than his previous four predecessors — Barack Obama, George W. Bush, Bill Clinton and George H.W. Bush — managed in two. The irony of a former pro-choice Democrat who shared a bed with adult film stars securing such a place in history is not lost on most, least of all those who have so politically profited from it.
Barrett will have to dive right in, hearing oral arguments days after Election Day about the constitutionality of what remains of the Affordable Care Act, to say nothing of possibly wading into the election itself. Just Monday, the Court ruled against an effort in Wisconsin to extend mail-in ballots past Election Day, a ruling considered a victory for Republicans. “Justice Barrett made clear she will issue rulings based solely upon a faithful reading of the law and the Constitution, not legislate from the bench,” Trump said Monday. On that subject, of course, America remains a house divided.