ACB confirmation cements conservative majority on US Supreme Court

The Trump administration has, with the support of the Republican Senate, moved with frankly astonishing speed – to arrange the nomination of Amy Coney Barrett to the Supreme Court.

Barrett was confirmed last night by a 52 to 48 vote, with no Democratic support and Lisa Murkowski being the only Republican senator to oppose, after a nomination period of just 31 days. By comparison, the last nominee, Brett Kavanaugh, had a confirmation period of 90 days. Before that Neil Gorsuch, whose nomination was not complicated by sexual assault allegations, was confirmed after 70 days.

Behind this haste lies the upcoming election. Republicans are bracing themselves for the possibility that they might lose not just the presidency but even the Senate. Biden and downballot Democrats hold a steady lead in key state races. For Republicans the 6-3 conservative super-majority on the Supreme Court that Barrett gives them seems the best check on what stands to be one of the most liberal US administrations in decades,should the Democrats win the presidency and the Senate.

Mitch McConnell, the Republican Senate leader, was explicit about this as he cast his vote in the penultimate stage of Barrett’s nomination. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.” Indeed, the three relatively young Supreme Court Justices appointed by Trump stand to enshrine conservative power on the court for decades.

The courts have always been McConnell’s priority. In 2016 he blocked Obama’s nominee to the Supreme Court, Merrick Garland, for the best part of a year – a gamble that paid off with the victory of Trump and subsequent nomination of Gorsuch. The fact that he did so by claiming it was inappropriate for Democrats to nominate a justice in an election year, and that voters should choose, has only added to Democrat’s rage at Barrett’s nomination.

McConnell’s resolute blocking of nearly every other Obama nominee to lower-level federal courts from 2014-2016 has also paid substantial dividends allowing the appointment of over 200 federal judges under Trump. In an America where courts often decide key policy issues this translates into the creation of a decades long bulwark of conservative power.

The Barrett nomination could also pay more immediate dividends for the Republicans – potentially helping tip the election result in their favour.

Voting rights are a white hot issue in America. Democrats, who calculate that high turnout helps them and that voting difficulties tend to affect poor and minority voters who support them most, vociferously favour measures that make voting easier and ensure the maximum number of votes are counted.

Republicans meanwhile, some cynical some genuinely believing in mass voter fraud despite, have in the past decade made increasingly aggressive moves to make voting more difficult- helped by friendly court rulings.

Now, amid the pandemic, the role of the courts could be more important than ever.

The massive use of mail-in-ballots, plus various other creative voting methods, due to the pandemic has already set-off a blizzard of lawsuits. Can  others use mail in ballots in states which usually limit their use? How long after the election day itself can mailed ballots arrive and still be counted? Can they be counted if they contain minor mistakes or inconsistent signatures or do they have to be thrown out? Can voters drive by polling stations and drop off their votes with an election worker on the curb?

Some of these questions will be settled in the Supreme Court. So far the pattern seems to have been to defer to state level decisions, which has had the result of favouring Republicans.

Some cases have gone the Democrat’s way including a vital case concerning on earlier ruling made by the State Supreme Court in Pennsylvania – the most vital swing state in the country – that officials can count mail-in ballots that arrive up to three days after the election, so long as they are post marked no later then 3 November. Yet, even these few Democrat victories may yet be overturned once Barrett is on the court.

The Pennsylvania decision was only upheld on Monday 19th thanks to a 4-4 draw on the Supreme Court with Chief Justice John Roberts breaking with his conservative colleagues to side with liberals and deliver the draw. Pennsylvania Republicans refiled the case just days later, Friday 23rd, suggesting they are hoping for a different ruling once Barrett is ensconced on the Supreme Court.

Even more explosive would be a potential repeat of what happened in 2000 – when in a dispute over the results of the presidential election the Supreme Court stepped in to settle the matter. If this were to happen and if, as in 2000, Republican appointed justices were to rule in favour of the Republican presidential nominee the likely result would be a constitutional crisis.

Ultimately, the peaceful settlement of 2000 relied on the willingness of the Democratic nominee Al Gore, and the general public, to accept the Supreme Court’s decision despite the fact that Gore had won the popular vote and that it seemed he would win Florida if a full recount went ahead. Polls at the time found that even amid the controversy an overwhelming majority of voters were prepared to accept either candidate as a legitimate winner – a reflection of a less polarised political climate in which Bush and Gore had downplayed the differences between each other as much as possible.

Now, some 20 years later, America is at its most polarised perhaps since the Civil War, and certainly since the late 1960s and early 1970s. The different sides respectively regard the other’s nominee as vanguard of American fascism and a Trojan horse for socialist radicalism.

The Supreme Court also commands less respect than ever before on the left. Of Trump’s three nominees Gorsuch is seen by Democrats as having stolen his seat from Garland due to McConnell’s obstructions, Kauvanagh is widely believed to be a sexual predator, and Barrett is viewed as a fanatically religious threat to Obamacare and abortion rammed through with monstrous cynicism.

Joe Biden looks essentially guaranteed to win a popular majority. Should this happen only for Democrats to then lose due to the electoral college for the third time in five elections after a second intervention in favour of Republicans by a Supreme Court now stuffed with nominees that the left views, to varying degrees, as illegitimate don’t expect them to take it lying down.