The Conservative Movement Has Captured SCOTUS. Now What?
Back in may, after waves of protesters converged on the Supreme Court in response to the leak of the draft opinion that would overturn Roe v. Wade, a black fence appeared around the Court’s perimeter. Eight feet tall and deemed “unscalable” by the authorities, it offered an eerie echo of how the Court’s neighbor on Capitol Hill had looked behind barricades erected after the insurrection of January 6, 2021.
What happened at the Capitol on that January day was an attempted coup. What happened at the Supreme Court in June 2022 was a power grab of a different sort, driving the law far to the right in service of an agenda that most Americans don’t share.
June 2022 caught many Americans by surprise, but it shouldn’t have. The majority votes that erased the right to abortion, that put a constitutional stranglehold on states’ and cities’ efforts to keep guns off the streets, that further tightened religion’s grip on civil society, and that cast an ominous shadow over the policy-making apparatus of the modern federal government were the products of a project that goes back decades, one that unfolded in the full view of anyone who bothered to watch.
The decisions that term were the culmination of the single-minded pursuit of a goal that united cultural conservatives, deregulatory free marketeers, anti-abortion zealots, affirmative-action opponents, and all the other disparate elements of the political right in one common aspiration: the capture of the Supreme Court. That aim made perfect sense. Although in theory many of the objectives sought by this coalition of convenience should have been achievable through politics, popular will stood in the way. Efforts to overturn Roe v. Wade by amending the Constitution had failed spectacularly; public support for the right to abortion had, in fact, increased immediately following the Court’s 1973 ruling (and has increased even more now, following Roe’s overturning in Dobbs v. Jackson Women’s Health Organization). There was little that conservatives could do to make their agenda more appealing at the ballot box. That meant getting the Court was not simply the obvious choice; it was the only choice.
This was a goal that animated the conservative movement, first in defeat and then in triumph. Triumph arrived four months into the Trump administration, when the Senate confirmed Neil Gorsuch to the Supreme Court vacancy that by previously unquestioned norms had been President Barack Obama’s to fill. A phrase began to make its way around Washington in that early Trump period, shared among mainstream Republicans who were growing anxious about the chaos emanating from the White House. “But we got Gorsuch,” they said to one another, sometimes shortening the phrase to a kind of code: “But Gorsuch.” It served as a reminder that although the new president was making them nervous, Senator Mitch McConnell’s strategy had kept the real prize in safe hands.
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How a Supreme Court seat could bestow such power on an individual occupant rests on a yet deeper question: How did the Supreme Court itself acquire so much power over the lives of Americans?
The answer is, to a surprising degree, a 20th-century story. It wasn’t until 1925 that Congress gave the Court the power to select the cases it wanted to decide instead of simply resolving disputes as they happened to come along. Before then, as remains true today in the federal circuit courts of appeals, the justices didn’t control their own docket. The power to choose—a power that Congress expanded further, to near total, in the mid-1980s—transformed the Court from a solver of disputes between parties to a shaper not only of its own agenda but in many ways of the country’s as well. It became a law-giver rather than a dispute-solver.