At an event commemorating the 30th anniversary of the McConnell Center in Louisville, Ky., Supreme Court Justice Amy Coney BarrettAmy Coney BarrettSupreme Court low on political standing Graham tries to help Trump and McConnell bury the hatchet Are COVID-19 vaccine mandates a strategy to end the pandemic? 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 BreyerBarrett: Supreme Court ‘not comprised of a bunch of partisan hacks’ Sunday shows – Manchin says he won’t vote for .5 trillion bill Breyer says term limits would ‘make life easier for me’ 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 McConnellFord to bolster electric vehicle production in multi-billion dollar push On The Money — GOP blocks spending bill to kick off chaotic week in congress Overnight Health Care — Presented by Alrtia — Booster shots get bipartisan rollout 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 GarlandAbbott promises to hire Border Patrol agents punished by Biden administration House passes bill to ensure abortion access in response to Texas law Delta pushes for national ‘no fly’ list of unruly passengers after banning 1,600 from flights MORE, President ObamaBarack Hussein ObamaObama says US ‘desperately needs’ Biden legislation ahead of key votes Obamas to break ground Tuesday on presidential center in Chicago A simple fix can bring revolutionary change to health spending MORE’s nominee to replace Scalia, didn’t even get a Senate hearing.
But when Justice Ruth Bader GinsburgRuth Bader GinsburgWhat would Justice Ginsburg say? Her words now part of the fight over pronouns Supreme Court low on political standing To infinity and beyond: What will it take to create a diverse and representative judiciary? 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 TrumpJan. 6 committee chair says panel will issue a ‘good number’ of additional subpoenas Overnight Defense & National Security — Presented by AM General — Pentagon officials prepare for grilling Biden nominates head of Africa CDC to lead global AIDS response 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 GoreTrump’s election fraud claims pose risks for GOP in midterms Don’t ‘misunderestimate’ George W. Bush Why the pro-choice movement must go on the offensive 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?”