WASHINGTON ― The Supreme Court handed two major wins to conservatives on Tuesday relating to President Donald Trump’s travel ban and abortion, and perhaps nobody was celebrating more than Senate Majority Leader Mitch McConnell (R-Ky.).
In one decision, the court ruled 5-4 that Trump was within his authority to enact a travel ban that restricts people from coming to the U.S. from five Muslim majority countries. In another, the court ruled 5-4 to reverse a lower-court decision upholding a California law requiring so-called crisis pregnancy centers to fully disclose their anti-abortion agenda.
In both cases, Justice Neil Gorsuch voted with the majority. Gorsuch wouldn’t be on the court if it weren’t for McConnell, who single-handedly blocked President Barack Obama from filling a Supreme Court seat and reshaped the nation’s top court for a generation.
Within an hour after Justice Antonin Scalia died in Feb. 2016, McConnell announced that he would block any Obama replacement. Republicans followed his lead by denying a Senate confirmation hearing to Obama’s choice for the court, Merrick Garland. It was a cynical tactic, and it worked: the seat sat empty for a year and Trump went on to fill it with Gorsuch, a staunch conservative.
McConnell has said “one of my proudest moments” was looking Obama in the eye and telling him he would block his Supreme Court nominee.
On Tuesday, he seemed to relish in the role he played in shaping the court’s rulings. Right after the court announced its decisions, the Republican leader’s campaign tweeted a photo of him smiling and about to shake hands with Gorsuch, with no caption.
Daniel Goldberg, legal director at Alliance for Justice, a left-leaning group that advocates for the federal judiciary, said the Supreme Court is now the most ideologically conservative it’s been in modern history. The court has had a 5-4 conservative majority for nearly 50 years, and McConnell’s success in denying a seat to Obama prevented Democrats from their shot at flipping the ideological balance to a 5-4 liberal majority.
“There’s no doubt Mitch McConnell stole this seat,” said Goldberg. “He completely attacked our Constitution, and he did so to install on the bench an individual who he knew would be an enabler of Donald Trump, who he knew would repeatedly side with the wealthy and powerful.”
McConnell said Tuesday afternoon that he didn’t do anything out of the ordinary by denying Obama a Supreme Court seat.
“All I did was apply the Biden rule,” McConnell told reporters.
He’s referring to a 1992 speech that then-Sen. Joe Biden (D-Del.) gave on the Senate floor urging his colleagues not to vote on a Supreme Court nominee until after the November elections that year. Republicans have dubbed this “the Biden rule” and like to cite it to justify their treatment of Garland.
But it is misleading to say the situations are the same: Biden’s speech was in June 1992, more than four months later in that year’s election cycle. There was no Supreme Court vacancy. There was no nominee to consider. There was no rule adopted. Most notably, Biden was urging no votes on a nominee until after the election, not punting the vote altogether to the next president. In his proposed scenario, the Senate still would have had two months to confirm a potential Supreme Court nominee picked by the current president in office.
“There’s no doubt Mitch McConnell stole this seat.”
Gorsuch had a hand in other Supreme Court rulings this month that delighted conservatives. The court upheld Republican-drawn legislative districts in Texas that had been thrown out by a lower court for diluting the power of black and Hispanic voters. It also ruled that Ohio can use an aggressive process for removing people from its voting rolls. In both cases, the decision was 5-4, with conservative justices in the majority.
“I imagine that Neil Gorsuch has in every instance ruled the way Mitch McConnell wanted him to,” said Goldberg.
Elizabeth Wydra, president of Constitutional Accountability Center, a public interest law firm, criticized justices who have “the chutzpah to call themselves originalists” while ruling in favor of Trump’s blatantly discriminatory travel ban.
“Today, five conservative justices ... gave license to the worst impulses of a president who has made no secret of his racial, ethnic, and religious prejudice against people who identify as Muslims,” Wydra said in a statement. “Rather than heed the words of James Madison, who said ‘the religion ... of every man must be left to the conviction and conscience of every man,’ today five conservative justices ... chose to bury their heads in the sand rather than follow the clear import of the Constitution’s text.”
This has been updated with McConnell’s comment.