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WASHINGTON — Joe Biden is president and Democrats control Congress, but it is Republicans who are enjoying some of the most far-reaching policy victories of the modern era, delivered by the Supreme Court’s new conservative majority.
In a recent series of rulings, the Supreme Court eliminated the constitutional right to an abortion by overturning Roe v. Wade, expanded the Second Amendment’s scope by finding a right to carry guns outside the home, curbed the Environmental Protection Agency’s regulatory power to combat climate change and enhanced religious rights by validating taxpayer money for religious schooling.
The string of conservative victories provides a stark contrast to Democrats’ struggles to pass major legislation or use executive power to achieve their aims. It captures the reason Senate Republican Leader Mitch McConnell used extraordinary tactics to engineer the right’s 6-3 majority, which is seen as the most conservative Supreme Court in nearly a century.
That’s no accident: Republicans have spent decades organizing around the courts, vetting conservative judicial prospects who embrace their limited view of the Constitution and mobilizing voters to elect presidents and senators who vote to confirm them.
“It took us 50 years to overturn Roe vs Wade. We worked hard, won elections, and put conservatives on the court,” Sen. Lindsey Graham, R-S.C., a former Judiciary Committee chair, tweeted.
The court is just getting started. Next, it plans to revisit affirmative action and consider a Republican-led challenge about whether state legislatures can decide elections regardless of the courts, a case that some experts say could radically reshape American elections.
McConnell took credit for the recent outcomes at events in Kentucky this week, touting his move to refuse to let President Barack Obama fill a Supreme Court vacancy as “the single most consequential decision I’ve made in my public career.”
In 2016, when conservative Justice Antonin Scalia died unexpectedly, McConnell blocked a vote on a replacement for 10 months. His move broke with a longstanding presumption that nominees at least receive consideration, infuriating Democrats in the process. At the time, he cited the fact that it was an election year, saying voters “should have a voice” on that issue.
Liberals assail conservative ‘activist’ court
Four years later, when liberal Justice Ruth Bader Ginsburg died from cancer, McConnell rushed the confirmation of Amy Coney Barrett through the Senate the week before Election Day, cementing one of the sharpest rightward shifts in the court’s history with the replacement of a single member.
“And then Justice Ginsburg passed away. A couple of months — actually six weeks before the 2020 election, we were able to replace her,” McConnell told constituents this week.
Democrats remain furious about McConnell’s tactics, with many accusing him of stealing a seat and hypocritically reversing his own 2016 standard to push the court to the right. McConnell has insisted that his move in 2020 was different because Republicans controlled both the White House and Senate at the time.
Liberal lawmakers and advocates say the Democratic Party has been too timid and must fight back. Some are calling for passage of the Judiciary Act, which would add four seats to the Supreme Court. Others say Congress should constrain the court’s power. Many are blasting the conservative majority as right-wing activists in robes, a reversal after Republicans spent decades inveighing against the “activist” rulings of the more liberal court of the 1960s and 1970s.
The recent rulings have been jarring even to liberal institutionalists. Biden, who opposes Supreme Court expansion, labeled the abortion ruling decision “destabilizing” and called for a filibuster exception to codify the right to end a pregnancy. Justice Elena Kagan, in her EPA dissent, said she was wrong to concede years ago that the court’s conservatives cared about the judicial philosophy of textualism.
“The current Court is textualist only when being so suits it,” Kagan wrote. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”
The conservative victories come atop other court wins, such as eliminating campaign finance restrictions and invalidating a centerpiece of the Voting Rights Act. And liberal victories on issues like gay rights are now feared to be in doubt due to the new court.
‘Urgent and highly personal’
But to Republicans like McConnell, the engineering of the current court is a lesson in power and political consequence.
McConnell’s gambit in 2016 paid off when Republicans won the White House and held control of the Senate. Scalia’s seat was filled by President Donald Trump’s nominee, Neil Gorsuch. In 2018, after the retirement of Justice Anthony Kennedy, a longtime swing justice with idiosyncratic views, Republicans replaced him with Brett Kavanaugh, who was seen as a down-the-line conservative.
Before the 2020 election, McConnell wagered that Democrats would not retaliate against the speedy confirmation of Barrett if they regained power. His calculation has panned out, with scores of Democratic lawmakers saying they don’t support Supreme Court expansion. And with slim majorities, the party lack the votes to restructure the court, frustrating liberal advocates.
“This is a radical, out-of-control Supreme Court. More is coming. We need the Democratic Party to recognize the existential threat posed by this Court and embrace calls for reform,” said Brian Fallon, the head of the courts-focused Demand Justice.
The swearing in Wednesday of Justice Ketanji Brown Jackson, the first Black woman to serve on the court, felt like a pyrrhic victory to some Democrats as it preserves the 6-3 ideological balance.
In the near term, Democrats hope to use the rulings, most notably on abortion, to mobilize their voters in the 2022 midterm elections.
Pollsters say it may have an impact.
“Voters are motivated when they see the tangible differences that their political engagement can make,” said John Della Volpe, a pollster and author. “The stakes in this election and the contrast between the two parties have not been greater in our lifetimes. The future of democracy, the climate, privacy, and whether or not women in America have reproductive rights have made the once philosophical debates now urgent and highly personal.”
