It’s hard to pin down the most objectionable part of the White House ceremony Monday night celebrating the shameless power grab that put Amy Coney Barrett on the U.S. Supreme Court eight days before Election Day.
But if I had to choose, I’d say it was Barrett’s decision to go along with Donald Trump’s finger in the eye to all those Democratic nay-sayers, to the medical science gang, to the Roe v. Wade supporters, to the COVID, COVID, COVID crowd, and to those, mostly, who see this as Barrett signaling she and Trump are on the same team, judicial independence be damned.
Barrett will get many chances to answer the judicial-independence question, in which the results will almost certainly be mixed. But her first response was not exactly promising, particularly given that she had been the first Supreme Court justice in 151 years not to win a single vote from the opposing party, not to mention that her ascension cements a 6-3 conservative majority on what will be the most right-wing court of our lifetimes even as the country seems to be moving in the opposite direction.
If you saw the 52-48 vote — Susan Collins was the lone Republican to join the Democrats in objecting — you saw the Republican senators celebrating. I didn’t see Cory Gardner, but I assume he was celebrating, too, even as many assume this vote puts Gardner in even more serious jeopardy — and the jeopardy was already serious enough — of losing his seat.
The thing is, Barrett could have declined. It would have angered Trump, but she could have insisted on a more neutral, justice-is-blind site because, once confirmed, she was no longer simply Trump’s nominee. At minimum, she could have worn a mask to acknowledge the continuing battle with the virus that has claimed more than 222,000 American lives thus far even as record numbers of cases are being seen in states across the country. In Denver, they announced Tuesday further restrictions to help fight the dangerous surge in COVID cases and hospitalizations.
But there Barrett was on the White House lawn, a month to the day after Trump had introduced her in the infamous Rose Garden super-spreader event that brought COVID in force to the White House and, in all likelihood, to the First Family, including Trump himself. This was Trump replicating that event as closely as possible, even as the latest COVID cluster has hit Mike Pence’s White House team.
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Yes, there were concessions to the virus. They did move the ceremony from the Rose Garden to the roomier South Lawn. Guests were required to wear masks. There was some distance — not the recommended six feet, but some — between the chairs.
But Trump didn’t wear a mask. Neither did Barrett. Both, of course, had already been infected by the virus. But neither did her husband. And neither did Justice Clarence Thomas, the most right-wing member of the court, who, as far as we know, hasn’t been infected and who was Barrett’s choice to swear her in, just in case anyone had missed the point of her nomination.
Or as Mitch McConnell, the villain of the plot, put it: “A lot of what we have done over the last four years will be undone sooner or later by the next election.” But he added, “It won’t be able to do much about this for a long time to come.”
Did that sound like gloating? Republicans know they may lose control of the Senate this year. They know — even Trump knows — that the president is a long shot for re-election. And so they have planted their flag at the Supreme Court.
We know the story. After McConnell refused to give Merrick Garland a vote in the last year of Barack Obama’s presidency because, you know, it was an election year, he gave Trump a vote eight days before an election. It’s a level of hypocrisy rarely seen even in Washington. It was sufficient hypocrisy that Michael Bennet took to the Senate floor to accuse McConnell of “institutional arson.”
But there it was — Donald Trump, of all people, getting to put three justices on the Supreme Court. That won’t define his legacy — being the worst president in modern times will take care of that — but it may define the judiciary and its rulings for, yes, a long time to come.
Six of the nine justices on the court have been appointed by Republican presidents on a court that, while always ideological, has become — for both parties — just another political test. As has been noted many times, which doesn’t make it any more digestible, Republican presidential candidates have won the popular vote only one time since 1988.
And yet. And yet.
Of course, this is not the end. Politics will continue to play a role. In Colorado, we’re faced with yet another anti-abortion ballot measure, Proposition 115, which would ban abortions after 22 weeks except in a case where the patient’s life is in “immediate danger.”
Just more than 1% of abortions come after the 22nd week. In almost all cases, the abortion at that stage is a very difficult decision and often medically based. Prop. 115 has no exception for a rape or incest, no exception for the health of the fetus, no exception for the health of the patient. This is just one more attempt to place the state between the patient and her doctor. And if, as many fear, Barrett, whose anti-abortion sentiments are well known, becomes the deciding vote in overturning Roe v. Wade, we return to the place were state law determines access to abortion.
According to the polls, this may be a close vote. If you believe in the right to choose, as most Coloradans do, it should be an easy vote. And with Barrett now on the court, it should be an easier vote still.
But that’s not where the politics ends. We’re going to see how this court plays out. Donald Trump has said he expects a decision on the election to be made by the courts — and he obviously hopes Barrett would, yes, be a team player. Barrett was asked if she would recuse herself in such a case. She said she’d consider it, but she wouldn’t be pinned down.
In the meantime, cases on voting limitations — I prefer voter suppression, but that’s just me — are being heard almost daily. In a concurring opinion in the Wisconsin case on counting late-arriving ballots, Brett Kavanaugh wrote of the importance of states being able to name a winner as quickly as possible, which, you might note, reflects a certain president’s view of the situation.
On Nov. 10, the court will hear Trump’s latest effort to dismantle the Affordable Care Act. There is an important LGBTQ case before the court the day after the election. You can see where we’re heading. Joe Biden now says he wants to form a commission to look at possible court reforms and report back to him after six months. The big reform, of course, would be, as Democrats say, “enlarging” the court, and as everyone else says, court packing.
Any such decision would depend, of course, on Biden being elected, on Democrats winning the Senate, on public sentiment and, maybe most importantly, on how far to the right the Supreme Court does — or maybe doesn’t — immediately move. Elections, as someone once said, have consequences, and it’s hard to imagine an election more consequential than this one.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow.
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