A month ago, the Supreme Court sided against workers’ rights in an important arbitration case. A week later, the high court sided with Ohio Republicans on purges from state voter rolls. A week after that, the justices rejected efforts to stop partisan gerrymandering.
What do these rulings have in common? First, they were all 5-4 decisions. And second, each of these cases probably would’ve gone the other way if Neil Gorsuch hadn’t filled the vacancy left by the late Antonin Scalia.
The New York Times noted today:
The consequences of President Trump’s nomination of Neil M. Gorsuch to the Supreme Court – and the Republican blockade of President Obama’s nomination of Merrick B. Garland in 2016 for that seat – reverberated powerfully on Tuesday as the court’s conservative majority handed down major decisions on Mr. Trump’s travel ban and on abortion rights.
Shortly before the Senate voted to confirm Gorsuch last year, Senate Majority Leader Mitch McConnell (R-Ky.) told reporters, “As I look back on my career, I think the most consequential decision I’ve ever been involved in was the decision to let the president being elected [in 2016] pick the Supreme Court nominee.”
His boast was rooted in fact.
In fact, it’s reassuring in a way that the Republican leader appreciates the scope of his actions. After all, McConnell did something few Americans in history can credibly claim: he stole a Supreme Court seat and got away with it.
As we discussed several months ago, when Justice Antonin Scalia died, then-President Barack Obama nominated Merrick Garland, a center-left, compromise jurist to fill the vacancy, which opened the door to a historic opportunity, unseen in recent decades: the Supreme Court could finally stop drifting towards the right.
McConnell instead decided to impose an unprecedented high-court blockade, gambling that Americans might ignore his maximalist partisan scheme, and elect a Republican president and Republican Congress.
The gamble was very “consequential,” indeed. McConnell stole a Supreme Court seat from one administration and handed it to another. Instead of a center-left judge working alongside a conservative minority on the court, we have yet another conservative majority – this time with Neil Gorsuch, who’s only 50, and who’s likely to serve for decades.
I tend to think of this story as a scandal that’s never really fully been appreciated as one. Just after the election, Sen. Jeff Merkley (D-Ore.) told MSNBC’s Chris Hayes that Senate Republicans’ treatment of a qualified, moderate jurist was effectively a political crime. A Supreme Court seat, the Oregon senator argued, was “stolen from the Obama administration and the construct of our Constitution. And it’s being delivered to an administration that has no right to fill it.” The American people, Merkley added, need to “understand that this is the theft of the court.”
To appreciate the consequences of that theft, look no further than the growing list of 5-4 rulings that continue to delight the right.