Mitch McConnell wants you to know: The Court That McConnell Built — the Senate minority leader is, more than anyone else, responsible for its current configuration — is an unremarkable, by-the-books institution. In McConnell’s telling, the court is an “ideologically unpredictable body” that “produces diverse outcomes” . . .
You’ve heard about damned lies and statistics? The maxim applies to the Supreme Court, too. The Kentucky Republican is using numbers to try to sand the edges off a hard-right court, and the most intriguing thing about his argument, made in a recent Post op-ed, is that he felt compelled to make it at all.
Building a conservative-dominated federal judiciary has been McConnell’s passion project, but his greatest passion is achieving — or, in this circumstance, regaining — power. With control of the Senate up for grabs next year, McConnell must be worrying about whether the court’s actions, in particular its overruling of Roe v. Wade, are taking a toll on his chances of retaking the chamber and again becoming majority leader.
Because that is the best explanation for why McConnell is choosing to minimize the enormity of his accomplishment — his transformation of the Supreme Court from a wobbly center-right institution into a far more conservative, at times aggressively radical, body.
Under McConnell’s no-holds barred stewardship, Justice Antonin Scalia was replaced — not by President Barack Obama’s nominee, Merrick Garland, but by President Donald Trump’s, Neil M. Gorsuch. Justice Anthony M. Kennedy retired to make way for Brett M. Kavanaugh. Justice Ruth Bader Ginsburg died just before the 2020 election, and McConnell muscled through her replacement, Amy Coney Barrett.
The bottom line: one significant shift to the right (Kavanaugh) and one mammoth one (Barrett). Two seats that should have gone to Democratic presidents were instead handed to Trump. Thank you, Senator McConnell.
And the new justices delivered. Abortion rights, gone. Affirmative action, gone. Gun rights, dramatically expanded. The administrative state, deconstruction underway. Religious liberties, triumphant; separation of church and state, not so much. Does this sound “ideologically unpredictable” to you?
“What a difference five years makes,” Justice Sonia Sotomayor observed, dissenting from the six-justice conservative majority’s ruling in favor of a Christian website designer opposed to making websites celebrating the marriage of same-sex couples.
Sotomayor’s point is undeniable, yet McConnell prefers to blur it, and to obscure with statistics that assign equal weight to cases of dramatically varying importance. One Dobbs v. Jackson Women’s Health Organization, wiping out constitutional protection or abortion rights, or one Students for Fair Admissions v. President and Fellows of Harvard College, eliminating the use of racial preferences in college admissions, matters a whole lot more than a slew of more technical, less ideologically freighted decisions.
McConnell badly overstated his case. “Evidence from this past term indicates that the court’s defining characteristic isn’t polarization,” he wrote. “It is, instead, a politically unpredictable center.”
This could scarcely be more misleading. Once upon a time, in the late 1980s and early 1990s, I covered a center-right court that could be accurately described that way. Justices Sandra Day O’Connor, David Souter and Kennedy staked out that ground. The last two terms have witnessed the dismantling of their most important handiwork — preserving the right to abortion and upholding the use of race as a factor in college admissions.
Roberts, Kavanaugh and Barrett are not centrists, not even close. They are committed conservatives who happen to occupy the center of a court that has veered dramatically to the right. Liberal victories are few and far between, and they largely consist of being able to convince a few conservative justices to keep the status quo in place, not taking the law in any expansive new direction.
McConnell might not want you to understand that, but you should — and, McConnell notwithstanding, you should vote accordingly.
If you are unhappy with the Court's lurch to the extreme right, the proper response is to vote a straight Democrat ticket in every election. McConnell and his extremists must be punished severely and must never have majority control again for at least a generation.
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