"Mitch McConnell has just one goal: to preserve and extend Republicans’ advantage in Washington and beyond. He’ll do anything to achieve that goal, indifferent to everything but the will to power. We see this most clearly in McConnell’s approach to the Supreme Court. On Wednesday, after Justice Anthony Kennedy announced his retirement, McConnell promptly announced his plan to confirm a replacement in the fall. Political reporters pounced, asking the GOP leader to square this with his argument, two years earlier, that the Senate should not hear a Supreme Court nominee in an election year. “There’s no presidential election this year,” said McConnell, unbound by his own logic.
McConnell may have justified his 2016 blockade of Merrick Garland with an appeal to the public—”the American people are perfectly capable of having their say on this issue, so let’s give them a voice”—but the choice was purely instrumental. If President Obama could get a hearing for his justice, he might be confirmed. And if a left-leaning justice was confirmed, liberals would have a majority on the Supreme Court for the first time in decades, stymieing the Republican Party and its priorities.
By denying the president a Supreme Court pick, McConnell not only precluded liberal decisions on key concerns at the high court, he also gave Republicans a reason to back their presidential nominee. Donald Trump might be crude and racist, but with Mike Pence and other hard-right Republicans to guide him, he would nominate a conservative to the court and help Republicans entrench their power and achieve their ends. For white evangelicals and other social conservatives, it was an irresistible temptation.
And that’s what happened. Within a month of his inauguration, Trump nominated Neil Gorsuch, a hard-right jurist in the mold of Clarence Thomas. And after McConnell upended decades of Senate precedent by ending the judicial filibuster to preclude Democratic opposition, Gorsuch was confirmed.
McConnell will return to this well in the fall, when he holds hearings to replace Kennedy. Trump will choose another right-wing conservative, and the Supreme Court will have a working majority for a whole host of conservative doctrines and legal theories. Indeed, in the court’s last term, which just concluded, Gorsuch himself showed the dramatic impact a single justice can have on American politics—from who can vote and how workers are allowed to organize to who can be admitted into this country.
In Husted v. A. Philip Randolph Institute, decided earlier this month, Gorsuch joined with his conservative colleagues to uphold a voting law, pushed by Ohio Republicans, that allowed the state to strike registrations for voters who failed to return an address-confirmation form and then didn’t vote for another four years. Voting-rights activists sued, calling this a violation of the National Voter Registration Act, which bars any state from removing a voter from the federal rolls “by reason of the person’s failure to vote.” But writing for the 5–4 majority—made possible by Gorsuch—Justice Samuel Alito dismissed this argument, describing Ohio’s voter purge as an effort to “keep the State’s voting lists up to date.”
As Justice Sonia Sotomayor argued in her dissent, this simple housecleaning had a disproportionate effect on “minority, low-income, disabled, and veteran” voters. Black voters, a key constituency for Democrats, saw the heaviest burden.
Gorsuch defended a different burden on minority voters in Abbott v. Perez, a challenge to alleged racial gerrymandering—packing black and Latino voters into a handful of districts to dilute their voting power—in Texas’ congressional and state legislative redistricting. Not only did Gorsuch side with Alito and the conservative majority, which applied a “presumption of legislative good faith” to dismiss concrete evidence of bias, but he endorsed the view, pushed by Justice Thomas, that the Voting Rights Act allows lawmakers to dilute minority votes. As with Ohio’s purges, the practical effect of this is to advantage Republicans, especially in states where blacks and Latinos are a sizable—but geographically concentrated—demographic. If the Voting Rights Act were essentially invalidated, which is the direction Gorsuch and Thomas are pushing, those Republican lawmakers would likely push new voting restrictions, as they did in the wake of Shelby County.
On Wednesday, Gorsuch signed onto yet another decision that burdens a Democratic constituency. With Janus v. AFSCME, the Court now prohibits public sector unions from collecting fees from nonmembers, even as they’re required to represent them. In 2016, after Antonin Scalia’s death, the court deadlocked on a similar case. But with his right-wing views on labor, and ties to groups challenging public sector unions, Gorsuch was decisive.
The opinion, authored by Alito, rules that union fees for public sector workers violate First Amendment rights to free speech and association. But there’s no reason to think this doesn’t also apply to private sector unions. As Justice Elena Kagan notes in her dissent, “almost all economic and regulatory policy affects or touches speech.” As such, the conservative majority has opened the door to a full-throated attack on the regulatory state, using a “weaponized First Amendment.”
If nothing else, the court has further hobbled labor’s political power, directly harming Democrats who rely on unions for key support. And while Supreme Court justices are officially nonpartisan, President Trump gave up the pretense when he praised the decision on Twitter. “Supreme Court rules in favor of non-union workers who are now, as an example, able to support a candidate of his or her choice without having those who control the Union deciding for them. Big loss for the coffers of the Democrats!”
On Tuesday, the court issued its ruling upholding the president’s travel ban and creating a path for “colorblind” discrimination against disfavored minorities. In response, McConnell tweeted a photo of himself shaking hands with Gorsuch in a Senate office. It was a declaration of victory and a statement of power. By blocking Garland and installing Gorsuch, McConnell gave Republicans key judicial cover to burden voters, cripple countervailing institutions, and insulate themselves from popular opinion. It almost doesn’t matter whom Trump nominates next; McConnell has already prevailed."
Mitch McConnell’s gambit on Neil Gorsuch reshaped the court, even before Anthony Kennedy’s retirement.
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