Mitch McConnell must think anyone reading his new opinion piece on the Supreme Court’s just-concluded term is an idiot.
Published in The Washington Post on Monday, the Republican senator wrote of the monster he helped create: “It is an ideologically unpredictable body that takes cases as they come and produces diverse outcomes.”
In McConnell’s telling, the court is just a ragtag group of humble lawyers, solving appellate puzzles dropped from the sky on the courthouse doorstep each term. Sure, there are some wins, some losses and perhaps even some good old-fashioned high jinks along the way.
But if you begin to contemplate the Senate minority leader’s thesis, you realize there’d be no reason for his office to concoct that stunningly dumb statement if it were true.
Let’s put to the side, for a moment, that the Kentucky senator’s shady molding of the court — blocking Merrick Garland, packing Amy Coney Barrett — should make any lectures he writes about it instantly burst into flames.
McConnell’s analysis of the cases themselves also suffers, plagued by sins of omission, at best.
Turning then to the substance, his claim that the court “takes cases as they come” is arguably misleading. On the one hand, the phrase might not actually mean anything or maybe is a folksy way of saying the justices do their best or something. However, it could work to misdirect from this basic fact of the court: The justices mainly set their own agenda, and it takes four justices to agree to hear a case.
So even if the three Democratic appointees could somehow get a more liberal priority on the docket, they’d want to think twice before doing so, given the possibly rancid result come decision time. Mindful of that reality, the relatively few cases the court hears argued each term don’t appear from on high but, rather, are hand-picked by the majority that will decide them, plucked from thousands of hopeful petitions, most of which are left in the dust.
Sadly, McConnell’s analysis of the cases themselves also suffers, plagued by sins of omission, at best. For example, after extolling that a bunch of the term’s rulings were actually unanimous, he writes in the very next line, “Yes, the Biden administration lost in Axon Enterprise v. Federal Trade Commission, but so did the state of Alabama in Allen v. Milligan.”
On the court McConnell helped build … his party doesn’t have to win every battle to win the war. From that tit-for-tat rendering, one might assume those two rulings were both unanimous and similarly significant. That assumption would be wrong on both counts. Indeed, you might read that line and wonder: ‘Wait, isn’t Axon Enterprise a case I’ve never heard of, while Allen v. Milligan is the case where the court, on the shadow docket, let an illegal voting map be used in the 2022 midterms to help Republicans win the House and then, mercifully, on the merits, voted 5-4 to not further gut the Voting Rights Act?’ Yes, you’d be correct. The first of those cases was a unanimous ruling about suing federal agencies, while the second was a landmark case implicating the right to vote that not only wasn’t unanimous, but also Alabama didn’t even lose it completely, if you count the shadow docket detour, as any true analysis must. So when McConnell writes, in closing, “This latest term demonstrates that no party wins or loses before the Supreme Court every time,” that’s technically true and also some combination of misleading and meaningless. That’s because on the court McConnell helped build — which, of course, overturned Roe v. Wade last year, the crowning conservative movement milestone that doesn’t rank a mention in his column — his party doesn’t have to win every battle to win the war. And still, no matter how he spins it, they win most important battles on the 6-3 court, numbered such thanks to the machinations of McConnell & Co.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
Latest Post
Recommended
