It was never about the supposed mistreatment that Robert Bork, a Reagan nominee, suffered at the hands of Senate Democrats in 1987. That nomination played out exactly as it should have. Senate Democrats gave Judge Bork a full hearing, during which millions of Americans got to experience firsthand his extremist views on the Constitution and federal law. He received an up-or-down vote on the Senate floor, where his nomination was defeated by Democrats and Republicans together. President Ronald Reagan came back with a more mainstream choice, Anthony Kennedy, and Democrats voted to confirm him nine months before the election. Compare that with Republicans’ 2016 blockade of Judge Merrick Garland, whom they refused even to consider, much less to vote on: One was an exercise in a divided but functioning government, the other an exercise in partisan brute force.
How will a Justice Barrett rule? The mad dash of her confirmation process tells you all you need to know. Republicans pretended that she was not the anti-abortion hard-liner they have all been pining for, but they betrayed themselves with the sheer aggressiveness of their drive to get her seated on the nation’s highest court. Even before Monday’s vote, Republican presidents had appointed 14 of the previous 18 justices. The court has had a majority of Republican-appointed justices for half a century. But it is now as conservative as it has been since the 1930s.
Of all the threats posed by the Roberts Court, its open scorn for voting rights may be the biggest. In 2013, Chief Justice John Roberts wrote the lead opinion in the most destructive anti-voter case in decades, Shelby County v. Holder, which gutted the central provision of the Voting Rights Act and opened the door to rampant voter suppression, most of it targeted at Democratic voters. Yet this month, Chief Justice Roberts sided with the court’s remaining three liberals to allow a fuller count of absentee ballots in Pennsylvania. The four other conservatives voted against that count. In other words, with Justice Barrett’s confirmation the court now has five justices who are more conservative on voting rights than the man who nearly obliterated the Voting Rights Act less than a decade ago.
In 2015, when the Supreme Court ruled that the Constitution protected same-sex marriage, Justice Antonin Scalia angrily dissented. “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” he wrote.
The American people, who have preferred the Democratic nominee in six of the last seven presidential elections, are now subordinate to a solid 6-3 conservative majority on the Supreme Court.
Republicans accuse those who are trying to salvage the integrity and legitimacy of the Supreme Court with trying to change the rules or rig the game. Having just changed the rules in an attempt to rig the game, that’s particularly galling for them to say.
The courts must not be in the position of resolving all of America’s biggest political debates. But if Americans can agree on that, then they should be able to agree on mechanisms to reduce the Supreme Court’s power and influence in American life.