The Supreme Court has legal authority; what it decides is the law of the land. The current court, however, lacks political authority.
This eludes Justice Amy Coney BarrettAmy Coney BarrettA politicized Supreme Court? That was the point Solid majority believes Supreme Court rulings based more on politics than law Locked and Loaded: Supreme Court is ready for a showdown on the Second Amendment MORE, who in a recent speech at Louisville's McConnell Center insisted that — contrary to media coverage — the court is apolitical, “not a bunch of partisan hacks.”
Barrett is one of a six-member conservative Republican majority — and one of two who got there through legislative sleight-of-hand. In 2016, then-Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBiden says he's open to altering, eliminating filibuster to advance voting rights Pelosi says GOP senators 'voted to aid and abet' voter suppression for blocking revised elections bill Manchin insists he hasn't threatened to leave Democrats MORE (R-Ky.) cheated — legally — by denying for nine months even a hearing on an eminently qualified nominee for the high court, Merrick GarlandMerrick GarlandBiden: Comment that DOJ should prosecute those who defy subpoenas 'not appropriate' House votes to hold Bannon in contempt of Congress Garland defends school board memo from GOP 'snitch line' attacks MORE, now attorney general. McConnell claimed at the time the choice to fill the seat should rest with “the people” in the upcoming election. When Donald TrumpDonald TrumpHarris stumps for McAuliffe in Virginia On The Money — Sussing out what Sinema wants Hillicon Valley — Presented by Xerox — The Facebook Oversight Board is not pleased MORE was elected, McConnell promptly changed Senate rules to eliminate the filibuster for Supreme Court nominees and pushed through conservative Neil GorsuchNeil GorsuchLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Justices weigh request for information on CIA's post-9/11 torture program Supreme Court declines to hear dispute over DC representation in Congress MORE for what should have been the Garland seat.
Then in 2020 just weeks before the November general election, McConnell abandoned his concern for “the people” making a choice, seized on the death of Justice Ruth Bader GinsburgRuth Bader GinsburgCouric defends editing of RBG interview Biden's Supreme Court commission ends not with a bang but a whimper The Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle MORE and rushed through Trump's right-wing choice — Barrett — winning a partisan confirmation little more than one week before the presidential election. Never before had a justice been confirmed so close to a presidential election.
If history and McConnell’s own political protocol had been followed, Barrett’s seat would have been filled by President BidenJoe BidenBiden: Democrats' spending plan is 'a bigger darn deal' than Obamacare Biden says he's open to altering, eliminating filibuster to advance voting rights Biden: Comment that DOJ should prosecute those who defy subpoenas 'not appropriate' MORE's nominee.
So — prima facie — when Barrett asks us to believe this court is apolitical, it strains credulity.
The point is illustrated by comparison to the 2000 Bush v. Gore decision, where a 5 to 4 majority decided the presidency by stopping a state recount of the vote in Florida. It was a terrible decision.
But two of the dissenters against just handing the office to Republican George W. Bush had been appointed by Republican presidents: John Paul Stevens and David Souter. All nine of those justices were confirmed in a legitimate process. That was a factor in public acceptance of a politically-motivated decision. (Justice Sandra Day O'Connor, who voted with the majority, later expressed regrets.)
By contrast, McConnell’s blatant duplicity changed the game — and will continue to cast doubts on the political standing of this court.
The Senate Republican leader already has indicated that if Republicans take the majority in the Senate next year, he again won't allow any Democratic Supreme Court nominations until after the 2024 election.
Barrett’s own history is instructive. While a professor at Notre Dame Law School she was part of a group that denounced the university recognizing Vice President Joe Biden, a Catholic, for his contributions to public life. She believed his views on abortion — ignoring all else in a career of more than 40 years of public service — disqualified him, even though the recognition wasn't related to abortion.
Barrett’s line about not being “partisan hacks” stood out even more given the venue: She was introduced by the man who rigged the composition of the court — McConnell — in a center named for him.
Worse, as Slate's Dahlia Lithwick wrote, Supreme Court reporters weren't notified of the speech, no video or transcript was permitted, and while assailing media coverage of the court, Barrett claimed she didn't read any of it. Insisting she was guided only by judicial philosophy, she suggested she didn't personally agree with some of her decisions.
Tell us a couple, Madame Justice?
A separate issue, actually, is the lack of anyone with real political experience on the Supreme Court. Since O'Connor retired there has not been a justice who has faced a voter. They are almost exclusively appellate court judges whose understanding of politics is more theoretical than practical.
Consider the court's momentous 1954 decision, the Brown v Board school desegregation case. This was a unanimous decision led by a chief justice who been governor of California, Earl Warren — and including three former U.S. Senators: Hugo Black, Sherman Minton, and Harold Burton, as well as two former U.S. Attorneys General, Robert Jackson and Tom Clark. It was an appreciation of the delicate politics that facilitated a unanimous decision. It's impossible to envision the current court rising to that level.
As a great politician and judge, the late Abner Mikva, often reminded me, a number of critical cases are as much about politics and policy as the law.
The naivete — or ignorance — of the recent court on realpolitik is manifest.
In the infamous Citizens United case, which opened the special interest money spigots in political campaigns, Justice Anthony Kennedy opined there wasn't a problem as the internet provides citizens “with the information needed to hold corporations and elected officials accountable.” I hope he’s watching Senate Republicans and Democrats today arguing over which is more reliant on secret, undisclosed money. Somebody should send the former justice a copy of Jane Mayer's book, “Dark Money.”
In the equally infamous Shelby County decision, removing federal voting supervision of southern states with a history of racial discrimination, Chief Justice Roberts argued this sort of discrimination was a problem of the past, and had “no logical relationship to the present day.” Try telling that to Blacks in Georgia as the right-wing legislature moves to suppress their votes.
Yes, Judge Barrett, the court is political. That's why it needs members who know more about politics.
Al Hunt is the former executive editor of Bloomberg News. He previously served as reporter, bureau chief and Washington editor for the Wall Street Journal. For almost a quarter century he wrote a column on politics for The Wall Street Journal, then The International New York Times and Bloomberg View. He hosts Politics War Room with James Carville. Follow him on Twitter @AlHuntDC.