There is no way to understand Amy Coney Barrett without first visiting 1987.
On the first of July, President Ronald Reagan stood in the White House Press Room. To his right stood the professorial Robert Bork, wearing an unusual-for-him wide grin.
Reagan made a few good-natured jabs at the assembled press. Then he announced Bork as his nominee for the Supreme Court. Reagan described Bork’s sterling academic and legal credentials.
Just forty-five minutes later, Ted Kennedy took the floor of the United States Senate and described Bork as an extremist who would plunge American society backward.
Bork would become only the fourth nominee to the Supreme Court since 1894 to be rejected by the Senate. And he was the first whose nomination became a politicized spectacle.
In response to Kennedy’s floor speech, Bork said, “There was not a line in that speech that was accurate.”
And thus began the saga that would end with “bork” as a verb meaning “obstruct through systematic defamation or vilification.”
To many of our readers, this story will sound so mundane as to hardly warrant a mention. The treatment of Bork is precisely the treatment we would expect of virtually any Supreme Court nominee today. But at the time this was a major shift away from focusing on nominees’ qualifications, to instead speculating on the political effects of nominees’ jurisprudence.
The right eventually responded, and since the end of Bill Clinton’s presidency, not a single Supreme Court nominee has been met with broad bipartisan support.
So began the ongoing, multi-generational effort to reclaim how the nation’s founding document is understood and applied.
This growing divide is also reflected in the public’s perceptions of the court. While much has been said about the growing skepticism on the left towards the Supreme Court, the right’s own concerns with the Supreme Court are now entering their fourth generation, typified by the 47-year-old Roe v. Wade decision. Many conservatives continue to feel that abortion rights have gone too far, and large majorities of Americans agree.
What then could be done? By its nature, the Supreme Court is not intended to be political or responsive. So if conservatives wanted change, they would need to be especially long-sighted. And so began the ongoing, multi-generational effort to reclaim how the nation’s founding document is understood and applied.
The Federalist Society was created to help nurture conservative judicial philosophy and grew in influence to the point it has helped form President Donald Trump’s list of candidates for Supreme Court nominations.
Consistently, voters who list the Supreme Court among their most important issue have voted for Republican candidates. And the Republican party has broadly adopted policies that focus on gathering voters in the most states in order to secure Senate control, rather than appealing to the largest number of voters in densely populated areas.
And when Donald Trump rejected Republican orthodoxy in areas from trade, to foreign policy, to deficit spending, conservatives still propelled him to victory in the hope of securing a Supreme Court in the image they hoped for.
That effort has involved major political risks, such as waiting for nearly a year on President Obama’s nomination to the Supreme Court, for what was largely perceived at the time as a long-shot at getting a more favorable candidate. But time after time, voters have returned Republicans to office to continue this project rather than punish them for their obstructionism.
With the nomination of Amy Coney Barrett, this unprecedented political endeavor may finally have paid off.
Who is Amy Coney Barrett in this narrative? In spite of the many commentaries striving to place her in many lights—from the conservative feminist, to the woman who did have it all, to an ideological warrior, to a brilliant legal mind—perhaps the most appropriate lens is to simply see her as the final piece in this long-standing strategy.
Most will simply see her as a conservative Catholic nominated by a Republican president with the imprimatur of the Federalist Society and draw their battle lines based on this alone.
And to be fair there is little else to draw a conclusion on. Her experience is very much in line with previous nominees. And while we can attempt to draw some conclusions based on her work for the Seventh Circuit Court of Appeals, the reality is that most rulings (even on salient subjects) will clarify procedural issues more than the matters of concern to most Americans. And we shouldn’t expect her to tell us much more. A Bork-inspired reticence for sharing her views on issues that may come before the court will virtually guarantee that.
As John Oliver concluded before his largely liberal audience, “We lost.”
Liberals, of course, have also raised fierce objections that the process is not fair.
Conservatives wanted to change the Supreme Court. They focused on the task for decades. And they successfully elected Senate majorities that promised to confirm the type of nominees they hoped for over and over (nearly two-thirds of the time) since wresting control during the Clinton administration. If after this long, and with their degree of electoral success they had not been successful, we ought to be asking ourselves about the breakdown of American democracy in very different ways. Ultimately in our republic what is fair is doing what you have the votes to do.
Unless of course you are proposing upending the entire system. And increasingly we are seeing calls to do just that. Calls to move from a life-time appointment to an eighteen-year appointment or to expand the Supreme Court to pack it with Democratic nominees have become popular.
But reactionary changes won’t have the same kind of effect as the generational efforts conservatives have made. These more dramatic shifts may provide short-term gains, but Conservatives have demonstrated the political will to fight for the Supreme Court for nearly fifty years.
Democrats would be wise to abandon these short-term efforts to break the system, and instead work to build up their own generational project. The American Constitution Society is well-positioned to serve as an analog to the Federalist Society but has never generated the same kind of interest or support. And while many Democrats have complained that the Senate naturally gravitates towards Republicans, this is only true because of the party platforms. Democrats could also adopt a platform designed not just to run up popular vote totals, but to appeal to a broad spectrum of citizens across US states where the Senate—which ultimately has the authority of determining Supreme Court justices—comes from.
None of this is intended to diminish Barrett’s inspiring life story and sterling credentials (as those on the right see it) or the seriousness of others’ objections to what they see as her backward world view and politicized jurisprudence. It is simply to point out that no matter how many times those narratives appear over the next weeks, they are only a very small part of a much longer battle. There is virtually nothing we can learn about or hear from Barrett that will change these basic fault lines.
As we endlessly debate “who is Amy Coney Barrett” over the coming weeks, remember that more than anything, she is an avatar for a conservative victory fifty-years in the making.
