Make no mistake, this is the ‘McConnell Court’
The Supreme Court’s just completed 2021 term marked a distinct turn toward the constitutional right and vision of the Federalist Society. There is no turning back, at least not in the near term. This is one of the youngest courts in over 100 years; its major constitutional decisions are likely to endure for a decade or more.
This is largely attributable to three most recent appointees: Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. In tandem with Justices Clarence Thomas and Samuel Alito, the court has a stable five-person majority — six when Chief Justice John Roberts joins them — steering it on politically salient issues of constitutional law. Many will attribute this result to President Trump, but that would be wrong. This isn’t “Donald Trump’s Court”; it is a court largely made by Senate Minority Leader Mitch McConnell (R-Ky.). And, for better or worse, it has brought the jurisprudential style of nearly 70 years to a hard stop.
The Dobbs v. Jackson decision reversing the Roe v. Wade and Planned Parenthood v. Casey abortion cases is a part of McConnell’s legacy, but it is far from its entirety. Since the presidency of Richard Nixon, Republicans have sought to shift the court away from its liberal jurisprudence. This is not so much about “judicial activism” — using judicial power to strike down legislation or reverse established precedents — as it is about shifting from liberal activism to conservative activism.
For example, a few days before reversing the Roe/Casey abortion right, the court struck down, by 6-3 votes, a New York State law requiring a permit to open carry firearms. And significantly, on Monday it lowered the “wall of separation between church and state” by formally overruling Lemon v. Kurtzman — a leading 1971 precedent — and protecting high school football coach Joseph Kennedy’s post-game prayer. The lowering of this “wall” was foreshadowed a week earlier when the court overturned a Maine law that prohibited expenditure of governmental funds to religious schools.
The leaked first draft of the Dobbs majority opinion and that case’s final disposition is part of the story of this term. It also highlights another element of this term’s story: the declining influence of the court’s chief justice.
Although Roberts signed on to the New York gun case, the religion clause cases, and most of this term’s other ideologically charged 6-3 decisions, he is no longer the court’s fulcrum in highly contentious cases. There are five justices solidly on his jurisprudential right. No doubt they like having his vote, but they don’t need it. Where Roberts’s preferred approach to constitutional decision-making is slow and incremental, that of Thomas, Alito, Gorsuch, Kavanaugh and Barrett is not. They appear to have little compunction against overturning precedents or distinguishing them into oblivion. Where prior courts took slow steps away from precedents they thought in error, this court seems much less inclined to do so. Thomas and Alito long have signaled that they were ready for hard and fast turns. Now they have the votes.
The decisions that define this term advance outcomes long desired by the Republican Party. The three Trump appointees have made the difference, cementing the ideological and jurisprudential shift that this term signifies. This was all made possible, however, by McConnell. He oversaw the Republican response to the contentious confirmation battle over Kavanaugh to successfully fill Justice Anthony Kennedy’s seat on the bench. But even more impactful was McConnell’s role in the other two Trump nominations. After Justice Antonin Scalia’s death while Barack Obama was president, McConnell engineered the procedural delay in the Senate that culminated in Gorsuch’s successful confirmation early in Trump’s presidency. Upon the death of Justice Ruth Bader Ginsburg, he orchestrated the confirmation rush that enabled Barrett to take her oath of office on Oct. 26, 2020, nine days before President Biden’s election.
Had Attorney General Merrick Garland replaced Scalia and, say, incoming Justice Ketanji Brown Jackson replaced Ginsburg, we would be looking at a much different court. The decisions of this past term more than likely would have been vastly different. But the jurisprudential landscape of the Supreme Court has been reshaped and — with cases raising issues of voting rights, affirmative action and other hot-button political issues on the horizon — the constitutional terrain is likely to see more resculpting.
The Federalist Society helped to author this constitutional redesign. The justices on the court will be the landscapers. But this reworking of the constitutional grounds is happening only because of McConnell’s political sagacity.
This no longer may be the “Roberts Court,” but it undoubtedly is the “McConnell Court.” That is the deeper story of this term.
Joseph F. Kobylka is an Altshuler Distinguished Teaching Professor and chair of the Department of Political Science at SMU Dallas. A constitutional law expert, he teaches and writes about the Supreme Court.