Majority of Supreme Court now confirmed by senates where Republicans represented fewer Americans than Dems

Majority of Supreme Court now confirmed by senates where Republicans represented fewer Americans than Dems
Photo via the White House.

On Monday, Senate Republicans confirmed Amy Coney Barrett to the Supreme Court and in doing so have officially brought minority rule to the highest court in the land: Five of the six conservative justices—a majority of the Supreme Court—have been confirmed by senates with Republican majorities that represented fewer Americans than their corresponding Democratic minorities.

Further underscoring this development, three of those five justices—Barrett, Neil Gorsuch, and Brett Kavanaugh—were appointed by a president who lost the popular vote, while the other two—John Roberts and Samuel Alito—by a president who likewise lost the popular vote for his initial term and might never have become president without that Electoral College victory. Among the conservatives, only Clarence Thomas was both appointed by a president who won the popular vote and a Senate where the majority party represented more Americans.

It isn't just the lack of popular support that delegitimizes this new Supreme Court majority: Republicans violated two centuries' worth of norms to obtain it, first with their blockade of Merrick Garland nomination and now with Barrett's rushed confirmation.

Fabricating a bogus precedent against election-year confirmations, Republicans refused to even give Garland a hearing despite the fact that there was nearly a year left in Obama's presidency. (Democrats, by contrast, had confirmed the conservative Anthony Kennedy in 1988, the last time prior to 2016 that a Supreme Court seat was vacant during an election year.) Four years after inventing reasons to torpedo Garland, Republicans then predictably turned around and confirmed Barrett a mere eight days before Election Day—and after roughly two-fifths of voters have likely already cast their ballots.

With this ill-won majority of radicals, the Supreme Court is poised to gut the rule of law, render the Voting Rights Act a dead letter, and give a green light to GOP gerrymandering and voter suppression efforts, all so that Republicans can permanently entrench minority rule at every level of government. Donald Trump himself has openly stated that he wanted Barrett on the court before the election so that its conservatives would decide the outcome in his favor. Just days ago, four justices were willing to blow up the foundation of federalism to further Republican suppression of the vote, and Barrett may soon give them a majority in the likely event that that case returns to the court—or if not, shortly thereafter.

Since 2010 elections swept them into power across the country, Republicans have passed restrictions on the right to vote in state after state, abetted by conservative judges confirmed by the very same Senate majorities the GOP has held while representing fewer Americans than Democrats. If Democrats nevertheless overcome these barriers to voting in 2020 by winning the presidency and both chambers of Congress, it may be their last chance for the foreseeable future to rescue American democracy from Republican efforts to lock in minority rule.

The radical-right majority on the Supreme Court comes with lifetime tenure, so the conservative justices may well play the long game and draw out rulings that risk sparking a public backlash that could bolster the case for reforming the courts. If they take their time with overturning Roe v. Wade, striking down Obamacare, and invalidating what remains of the Voting Rights Act, it could then be too late for Democrats to do anything about it. Democrats must therefore act before the 2022 midterms because the GOP could regain the House, Senate, or both.

It starts with eliminating the filibuster so that an empowered Congress can rebalance the Supreme Court, potentially by adding four or more justices. A fair-minded court is necessary to protect any further reforms, such as a new Voting Rights Act, statehood for Washington, D.C., and banning gerrymandering.

If Democrats fail to do so, however, Barrett and her fellow partisan activists will roll back much of the progress of the last century while making it impossible for Democrats to govern—if they're even able to win elections again in the first place. Indeed, with his party looking likely to get swept out of power next week, Senate Majority Leader Mitch McConnell has openly admitted as much. "A lot of what we've done over the last four years will be undone, sooner or later, by the next election," he conceded.

But regarding Barrett's confirmation—and by extension Trump's litany of judicial appointments at all levels—he gloated that the results of the election "won't be able to do much about this for a long time to come." McConnell will only be right if Democrats do not act.

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