President Donald Trump nominated federal appeals court Judge Amy Coney Barrett to fill Ruth Bader Ginsburg’s Supreme Court seat on Saturday in Washington, where—as Barrett noted in her remarks—flags around the capital still fly at half-mast because Ginsburg has not yet been buried.
The reason the plan to fill Ginsburg’s seat was announced the same night as her death was never a mystery: The president explained several times over the past week that the new justice’s nomination and confirmation needed to happen in the same amount of time Barack Obama allowed the nation to mourn before even naming a replacement for Justice Antonin Scalia in 2016 because Trump needs her to weigh in on any election-related controversy on his behalf. As he put it to reporters on Monday: “We need nine justices. You need that, with the unsolicited millions of ballots that they’re sending.” He explained that because of his (farcical, proofless) claim that mail-in ballots will be a source of rampant fraud, this ninth justice must be seated before an election challenge is mounted. That pronouncement came just prior to his claim that he could not commit to a peaceful transfer of power should he lose the election. Again: The reason a ninth justice is needed to be seated in advance of the election in which voting is already taking place is to decide whatever lawsuit is coming in his favor. Perhaps unsurprisingly, then, on Saturday Trump did not overtly ask Barrett to rule in his favor next month while detailing her biography on the White House lawn.
Trump has similarly announced on multiple occasions that he needs this vacant seat filled because Roe v. Wade cannot be allowed to stand and any nominee of his would “automatically” overturn it. Indeed, several GOP senators are on the record saying they would refuse to vote for Judge Barrett unless she openly promises to do so. It’s a problem. A Pew poll from last year found that 7 in 10 oppose seeing Roe overturned. Other polls suggest the margins are far higher. Barrett has written about her belief that stare decisis need not constrain judicial decision-making. It is thus unsurprising that Trump also did not bring up his promises about overturning Roe as he introduced Barrett in the Rose Garden.
Trump has also explicitly said that he wants the Supreme Court to overturn the Affordable Care Act and its protections for patients with preexisting conditions, which his Justice Department will actually argue in a case to be heard immediately in the wake of the election. If Barrett agrees with him, as many as 25 million people will lose their health insurance in the midst of a pandemic that is—if science is to be believed—not under control. Barrett wrote very critically of John Roberts’ vote upholding the ACA in 2012, saying in 2017 “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.” Polling from before the pandemic revealed that 55 percent of Americans support the ACA. So it is also unsurprising that nobody mentioned ending health care during the ceremony, either.
In her own remarks, Barrett said nothing objectionable, and her celebration of Ginsburg as someone who unfailingly worked across the aisle was deeply affecting. But working across the aisle is no longer fashionable, and this same Barrett argued in 2016 that Obama’s nomination of Merrick Garland to the Supreme Court was somehow to be viewed through the lens of raw partisan power: “We’re talking about him being replaced by someone who could dramatically flip the balance of power on the court. It’s not a lateral move.” But the fact that the voters should be allowed to select the nominee in 2016, and the voters—many of whom have already cast ballots—should not be allowed to select the nominee in 2020 (despite polls showing that most voters do not want a justice seated before the election) is also something that nobody mentioned in the Rose Garden, either. It would seem that “dramatically flipping the balance of power at the court” is just different when Republicans do it.
Trump forget to mention, in his tribute to an “independent judiciary” on Saturday, that he has devoted his presidency to bullying and insulting any judge who has ruled independently from him and also it’s very hard to say your judicial nominee is independent when you have already tied her to striking down reproductive rights and access to affordable health care and to interceding in your upcoming vote-fraud claims in any election litigation. He did mention three other areas in which Barrett will support his view of constitutional freedom: broader gun rights, broader religious liberty rights, and a commitment to greater “public safety.” On these promises too, the judge’s record is clear.
The reason the president forgot to mention that a) his judges cannot be permitted to be independent and b) that his judges tend to be wildly out of step with public opinion on so many of the topics he holds dear is that it would highlight what minority rule looks like, and why he cannot, in fact “let the people” decide with their votes in his upcoming election. A court determined to impose minority rule is in fact the playbook. It benefits big business, it benefits secret donors with considerable war chests, it benefits white supremacy, and it benefits Trump’s trailing electoral campaign. Quite simply, locking in the power of a minority through the courts is the political project of Trump and the Republican senators who are equally eager to jam this nominee through before the election.
As has been noted many times over this past week, the GOP has lost the popular vote in six of the last seven elections and yet appointed 15 out of the last 19 justices. Barrett would make that 16 out of 20 seats. And that is why the people most assuredly cannot be allowed to decide the future of reproductive freedom, the future of health care, or even whether and how their own ballots will be counted in just over a month. Trump cannot talk about those things because they will further harm his own polling and also reflect badly on GOP senators who pledged to vote for the nominee before they even knew who she would be. They cannot talk about those things because minority rule doesn’t poll as well in the U.S. as it does in, say, Hungary or medieval France. But minority rule is on the ballot. It may well be the only thing on the ballot. Because if, as the president promises, his independent justice needs to be seated to decide whose ballots count, this isn’t merely a commitment to entrench unpopular, dangerous, and partisan policies into constitutional law. It’s also a commitment to commandeering the high court itself into deciding whether and how to count votes, in an election in which a sitting president has already pledged that only some voters will be allowed to pick the winner.