The confirmation of Amy Coney Barrett to the Supreme Court could create a conservative majority for decades to come.
A new "Anti-Democracy Scorecard" released by the organization Take Back the Court last week shows that federal judges appointed under the Trump administration and shepherded through the confirmation process by Senate Majority Leader Mitch McConnell have voted overwhelmingly to erode voting rights.
The study found that judges appointed by Donald Trump ruled 85% of the time to make it harder for people to vote, and that judges appointed under Republican presidents in general ruled that way 80% of the time.
The study comes on the heels of a decadeslong march by dark money groups and billionaire Republican donors like the Koch brothers to pack the judiciary with conservatives for years to come.
Already judges appointed by Trump have impacted the 2020 election in places like Texas, where courts have ruled on limiting the number of ballot drop-off locations available to voters, who gets to vote by mail, and the postmark date required for ballots to be counted.
Beyond the November election, the host of GOP-aligned judges could also seriously complicate Democrats' post-election agenda, even if they are successful in winning back the White House and the Senate. A court system filled with conservative judges could mean repeated attempts to circumvent Congress with lawsuits challenging any and all of the legislation it hopes to pass.
Meanwhile, the ultimate goal of conservatives' judicial power grab is now well within reach. After a contentious series of hearings of the Senate Judiciary Committee during which she was grilled by its Democratic members on issues ranging from abortion to climate change, Amy Coney Barrett's nomination to the Supreme Court is set to be voted on by the committee on Oct. 22, after which it moves to a floor vote by the full Senate.
If confirmed, Barrett will be the decisive vote in a conservative court that could finally achieve the total disruption of the American political process, gutting voter protections and furthering Republican resolve to reshape heavily democratic districts to favor their own electoral chances. The conservative transformation of the high court would effectively ensure that conservative policies, such as cuts to programs such as Medicare and Social Security, that are wildly unpopular with the majority of Americans become the law of the land.
While Barrett's has a sparse record of rulings in voting rights cases, she did rule in 2019 against a plaintiff seeking to overturn an Illinois ballot signature requirement on constitutional grounds, claiming he was being denied fundamental rights under the First and 14th Amendments. Barrett ruled against him, writing that "it goes almost without saying that this slight burden is justified by Illinois's relevant and legitimate state interests."
Barrett failed to address the plaintiff's claim of violation of his First Amendment rights in her ruling, and notably failed to recall the amendment in its entirety during her confirmation hearings last week.
As Barrett's swearing-in draws near, and court battles over voting protections continue, it seems less and less likely that Justice Ruth Bader Ginsburg's last request — for her replacement on the Supreme Court to be nominated by the winner of the 2020 election — will be honored.
In sharp contrast to both Barrett and the conservative justices already on the court, Ginsburg was a unfailing champion of voter rights, consistently arguing to strengthen protections against voter discrimination and writing opinions in favor of expanding the right of all Americans to vote.
One of her most famous dissents came in 2013 in Shelby County v. Holder. The decision in that Supreme Court case, by a vote of 5 to 4, gutted the Voting Rights Act by striking down the requirement that jurisdictions with a history of discrimination against minority voters obtain clearance from the federal government before enacting any changes to their voting procedures.
"Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet," Ginsburg wrote.
Now, with storm clouds gathering on the horizon and voting rights again in peril, Ginsburg's words ring more true than ever.
When pushed by Sen. Amy Klobuchar (D-MN) this week on whether or not she believes it is illegal to intimidate voters, Barrett refused to answer: "I can't characterize the facts in a hypothetical situation, and I can't apply the law to a hypothetical set of facts. I can only decide cases as they come to me litigated by parties on a full record after fully engaging precedent, talking to colleagues, writing an opinion, and so I can't answer questions like that."
Published with permission of The American Independent Foundation.