Amy Coney Barrett and the Real Threat of Minority Party Rule

Cristian Farias

With a primetime campaign rally on the South Lawn of the White House, Amy Coney Barrett was sworn in on Monday by Justice Clarence Thomas as the newest associate justice on the Supreme Court of the United States, a third of which has now been nominated by Donald Trump. Barrett’s elevation one week before the end of the presidential election, as millions are already voting, marks the culmination of a messy, 50-year Republican crusade to cement an archconservative majority on the nation’s highest court—where Republicans have now placed 14 of the last 19 appointees.

Since judicial politics is now politics all the way down, the Trump campaign wasted no time in cutting video from the swearing-in to boost the president’s re-election chances. The Thomas-Barrett pairing carried its own significance because each justice, more by dint of political luck than anything else, got to replace a liberal giant on the bench: one took the seat of Thurgood Marshall, the architect of racial equality under law, and the other Ruth Bader Ginsburg, who did the same for women’s equality before becoming a judge. That each replacement was confirmed by the same low margin, 52 to 48, suggests how history will remember their rise.

This Trump-led spectacle was a fitting end to a mad rush to confirm Barrett that began with a coronavirus superspreader event in the Rose Garden, after which Trump and many others ended up infected—followed by a deliberate, though hypocritical, confirmation process in which Republicans offered the nominee all the courtesies they denied Merrick Garland in 2016. By one count, the 52 Republican senators who supported Barrett represent 13 million fewer people than the 48 Democrats and independents who opposed her, laying bare the Senate’s deep unrepresentativeness.

The Senate, as it happens, stands adjourned until after the election—installing Barrett, by all accounts, was more important to Republicans than economic coronavirus relief for Americans in need. Mitch McConnell, the Senate majority leader and ringleader of the Barrett battering ram, more or less gave away the game when he conceded this past weekend how unpopular his own legislative vision—or lack of it—is. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election,” McConnell said on the Senate floor. “They won’t be able to do much about this for a long time to come.” In a victory-lap interview with The New York Times, the Kentucky senator added that reshaping the courts was his crowning achievement. “I’m proud of it, and I feel good about it,” McConnell gloated.

This self-satisfaction, tempered by political reality, points in one direction: The Trump administration and its enablers may well be wiped out at the ballot box soon, but not so his judges, who will be delivering for the team for a generation. They already are. What McConnell doesn’t know and only voters can determine decisively is whether this entrenchment of minority rule, in the courts or otherwise, is sustainable.

This election will put that question to the test. On the one hand, more people have voted for the next president during the early voting cycle than Trump’s 2016 total. On the other, Trump is actively depending on judges rather than democracy to hand the election to him. He’s on the record about that. And Republicans have built an entire legal machinery around supporting his baseless fearmongering over a fraudulent election, turning to lawyers and judges in the hopes that fewer votes will get counted. In response, Joe Biden has lawyered up, too. “Hopefully the few states remaining that want to take a lot of time after November 3rd to count ballots—that won’t be allowed by the various courts, because as you know we’re in courts on that,” Trump said on Wednesday. “We just had a victory the other day in Wisconsin on that matter.”

By “we,” Trump means the Republican Party, which scored a victory on mail-in ballots before the Supreme Court just as Amy Coney Barrett was being confirmed. The five Republican appointees kept in place a ruling that confined the deadline for receipt of mail-in ballots to Election Day, as state law dictates—disregarding a judge’s order extending that deadline by six days, yet still requiring a November 3 postmark. “No one doubts that conducting a national election amid a pandemic poses serious challenges,” wrote Justice Neil Gorsuch in a short concurring opinion. “But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.” In other words, state legislatures rule the day in this area, not judges—state or federal.

Unmentioned in Gorsuch’s opinion is that in nearly all the battleground states—among them Michigan, Wisconsin, Florida, Pennsylvania, Arizona, Georgia, and North Carolina—Republicans control the legislatures. And many of these lawmakers, against the wishes of their Democratic governors, have resisted efforts to ease voting restrictions or otherwise ensure that every ballot is counted, even if cast on Election Day but received a few days later. In the same Wisconsin ruling, Justice Brett Kavanaugh complained, without evidence, that this was a recipe for trouble. States that have election-day deadlines, he wrote, “want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”

None of this is even remotely how states certify election results, which may take several days depending on voting volume or state law—yet there it is, in a sloppy judicial opinion endorsed by a justice of the Supreme Court. As if speaking for a nation on edge, a federal appeals judge in Richmond, Virginia, explained something that’s true for mail-in ballots everywhere but remains lost in Trump’s noise: “All ballots must still be mailed on or before Election Day,” U.S. Circuit Judge James Wynn wrote, emphasis his, in an order allowing additional days to process ballots in North Carolina. Over yet another dissent by Gorsuch, who called the North Carolina case “egregious,” that court’s ruling was left intact by the Supreme Court on Wednesday.

Barrett’s Supreme Court arrival, at this juncture, will be a true test. Not just of her independence from Trump and Republican efforts to suppress votes pre-election, but also of her willingness to go along with at least four of his colleagues for a redux of a chaotic scenario post-election—the possibility of repeating Bush v. Gore, in which five justices appointed by Republicans handed the 2000 presidential election to George W. Bush. Kavanaugh, of all the justices, appears ready to relitigate that battle. So does Justice Samuel Alito, who on Wednesday issued a troubling opinion—in a Pennsylvania case that allowed the state to keep counting mail-in ballots even past Election Day—that left open the possibility of discarding thousands of late-arriving ballots if the presidential election is too close to call. Or if Republicans are somehow dissatisfied with the results. Alito, joined in his opinion by Thomas and Gorsuch, called the prospect of going along with Republicans’ wishes a “modest relief.”

The newest justice didn’t weigh in on the Pennsylvania case, or in another North Carolina case that was resolved later on Wednesday—both a boon to voting rights advocates and to Democrats, who want every vote counted. Here’s how a Supreme Court spokeswoman put it: “Justice Barrett did not participate in the consideration of this motion because of the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings.”

Which is another way of saying that she’s still catching up and reading up. By the time she does, maybe by next week, Barrett will be in a position to vote on potential recounts or, worse, a last-minute push to toss out ballots in a state that Trump needs to win. Or hypocritically, the dispute may involve a bid to count mail-in ballots in a state where the president is behind by a few votes. All bets will be off then. The only way to keep the Supreme Court out of deciding anything is with a decisive blowout.

Originally Appeared on GQ