Republicans were always going to confirm Amy Coney Barrett to the Supreme Court. The hearings were theater; the result, predetermined. Barrett will now have 39 years to reimagine the Constitution to her satisfaction if she lives as long as her predecessor, Ruth Bader Ginsburg. That means I’ll spend about half my life with Barrett on the Court. My children, if I have any, will grow to adulthood under her watchful gaze. Her tenure will span generations and shape the trajectory of lives we can’t yet see. That’s the point. Just listen to Mitch McConnell.
“We made an important contribution to the future of this country. A lot of what we’ve done over the last four years will be undone sooner or later by the next election,” he said on the Senate floor this past weekend. “They won’t be able to do much about this for a long time to come.” McConnell’s first two points are uncontroversially correct. With Barrett, the GOP orders the future of this country, and that is important. The next election will, with any luck, give Democrats a chance to undo some of Donald Trump’s damage. But the Senate majority leader’s last assertion will become true only with the Democratic Party’s permission.
Democrats can do something about Barrett if they choose. But to protect the country from her and the movement she represents, they’ll have to break with the past. Her confirmation proves something that liberals should have understood by now: Norms are dead, and they aren’t worth the effort it would take to mourn them. Norms did not prevent Barrett from becoming a Supreme Court justice, just as they failed to prevent Trump from becoming president. Norms are part of the problem, and the party of McConnell has inadvertently provided a service by making this fact much more difficult to ignore.
What this means in practice is that business as usual cannot resume. “Business as usual” has, in fact, become meaningless. Within the context of the Supreme Court, McConnell already changed the rules of the game four years ago, when Barack Obama nominated Merrick Garland to the Supreme Court. Republicans balked. It was unacceptable, they agreed, for a president to nominate a justice so close to an election. (Antonin Scalia had died in February 2016.) The people were about to decide on a new president, who would be either Obama’s preferred successor, Hillary Clinton, or the Republican nominee, Donald Trump. By extension, the people should also get to pick the new justice.
When Ginsburg died last month, nobody pretended Republicans would follow the so-called Garland rule. Four years of Trump have been educational. The Garland rule is obviously a fiction invented by McConnell to protect his party’s grip on power. But as Democratic senators and liberal commentators rushed forward to point out the predictable hypocrisy in the Republican push to put Barrett on the bench, it became obvious that a lot of people are still missing the point. Those charges of hypocrisy accepted McConnell’s rationale as he stated it. That’s a mistake. The Garland rule was never “Let the people decide,” but rather “Do whatever it takes” to control the Supreme Court.
The same justification explains Barrett’s rushed confirmation hearing, even her very nomination. Barrett has little practical legal or judicial experience; she is significantly less qualified than even other conservative justices on the bench. She is deliberately evasive about her jurisprudential philosophy and her political views, though the public evidence that does exist suggests both are extreme. But Trump didn’t nominate her because she deserved it or because she would impartially interpret the Constitution. Nobody rises through the ranks of the Federalist Society or gives speeches to the Alliance Defending Freedom’s aspirant attorneys unless they’re an ideologue. We know that. Which means we know something else, too. With Barrett’s confirmation, the Supreme Court becomes an arm of the Republican Party, an illegitimate institution not fit for its purpose.
So Democrats and a prospective President Biden have to reckon with an urgent choice. If the Supreme Court cannot fulfill its function, it must be fixed. But how? Expanding the Court is the most immediate solution. The law permits it, and the Constitution arguably even demands it: If a president or party threatens the separation of powers, intervention is not only just but necessary. A 6-3 conservative Court could nullify or drastically redefine precedents that expanded civil rights for millions of people. It would be overtly partisan, poised to reinforce the policies of a second Trump administration or routinely block the reforms of a Biden administration. Even Angus King, the independent senator from Maine, has suggested that, at this point, there may be no alternative. “But if all of this rule breaking is taking place, what does the majority expect? What do they expect?” he asked. “They expect that they’re gonna be able to break the rules with impunity and when the shoe, maybe, is on the other foot, nothing is going to happen?”
Democrats have given the GOP no reason to expect anything else. Dianne Feinstein, the senior Democrat on the Senate Judiciary Committee, couldn’t even get through the proceedings without praising Barrett repeatedly for her intellect and her large family. The 87-year-old sounded at times as if she were ready to vote for a justice who thinks abortion is murder. If her party does retake the Senate along with the White House next week, it cannot afford to adopt her mindset. Democracy is not passive. It demands participation and requires maintenance. It will not magically right itself the minute Trump leaves power, especially not if the Supreme Court is there to hold it down.
We need new rules and bigger ideas. Don’t sacrifice political imagination on the altar of compromise. Where bipartisanship stands in the way of progress, bypass it. If norms weren’t strong enough to protect democracy from Trump and McConnell, let them die.