Americans increasingly view the Supreme Court as a politically compromised institution immersed in partisan culture wars. Senate Republican leader Mitch McConnell recently demonstrated yet again that the nation is justified in this view. He is refusing to rule out yet another blockade of any Democratic court nominee should his party retake the Senate next year.
The high court is by design intended to be the least partisan of the three branches of government. The nine justices aren’t elected; they are appointed by the president and confirmed by the Senate, putting a check on the power of either elected branch. The justices serve for life, theoretically putting them outside the clutches of petty electoral politics.
History is full of anecdotal evidence that the court’s structure has, in fact, dampened partisan fervor on the bench. But there is also evidence the days of a politically independent court are over, largely because of McConnell’s shameless strategizing.
Even by today’s rock-bottom political standards, McConnell’s hypocrisy regarding the court is astonishing. When conservative Justice Antonin Scalia died in February 2016, almost a full year before the end of then-President Barack Obama’s term, then-Senate Majority Leader McConnell refused to even allow a hearing for Obama’s nominee to replace Scalia. McConnell sanctimoniously declared that he would “let the people decide” via their vote in that year’s election — a rationale invented out of whole cloth.
Yet four years later, when liberal Justice Ruth Bader Ginsburg died shortly before the 2020 presidential election, McConnell ditched his own homemade precedent to ram through confirmation of a conservative justice, Amy Coney Barrett, before voters could stop him. The court’s current 6-3 conservative majority might today be a 5-4 liberal majority if not for McConnell’s creative rewriting of the rules.
Now McConnell, when asked about a hypothetical court vacancy during a hypothetical Republican Senate majority in the second half of President Joe Biden’s term, won’t say whether he’d pull the same stunt he pulled under Obama.
Polls show less than half the American public trusts the court to be nonpartisan. That may be why freshman Justice Barrett insisted in a recent speech that she and her fellow jurists aren’t “partisan hacks.”
Two problems: The speech came shortly after the court’s conservative bloc allowed Texas to go forward with the most draconian anti-abortion rights law enacted anywhere in America in generations. And, two, Barrett made the speech at the University of Louisville’s McConnell Center — and was introduced by McConnell himself.
For the sake of salvaging the court’s little remaining dignity, perhaps Barrett and the other conservative justices should just follow McConnell’s lead, and stop pretending they’re anything other than partisan hacks.
