Every hole the Republicans rip open in the constitution has been torn by someone else before
The American constitution stopped working some time ago and any legislative creativity has been about subverting rules and generally breaking things without anyone noticing or minding too much. Reconciliation bills, executive orders, agencies ‘adapting’ and ‘reinterpreting’ existing regulations: everything is a feint to get around the central fact. Outside of a very few quickly vanishing islands of consensus (mend broken road bridges!) or something that counts as (budget-neutral) spending, no bill ever passes congress, in any foreseeable near or medium term future, no bill ever will again.
Mitch McConnell won’t break this deadlock, even if he is re-elevated to Senate Majority Leader at the end of the year. Actually doing things, as opposed to stopping other people doing things, isn’t his style. Feted for years as a parliamentary tactical genius and the gravedigger of Obama’s dreams, when the boot was on the other foot and he actually had to get things passed himself, he couldn’t even repeal Obamacare.
So McConnell has turned to the Supreme Court to effectively legislate without legislating. Roe V Wade will be toast by July, if not overturned in letter then by effect, vaccine mandates for large employers have been shredded, and it looks about to dismantle what remains of campaign finance restrictions – in this case about the legality of campaigns ‘repaying’ loans with post-election restrictions.
Where power flows politics follows and the Supreme Court has always been the product of manoeuvring to some extent. Historically this tendency has always been spliced up by other requirements that provided some unpredictability of ideology – the need to maintain a balance on the court by region, for example, or the need to fill a ‘Catholic seat’ and then a ‘Jewish seat’, the needs of which resulting in peculiar results. John F. Kennedy’s sole nominee was, naturally, a family associate who turned out to be only one of two dissenters in Roe v Wade; Antonin Scalia sailed through nomination because his breathtaking conservatism was outweighed by the fact he would be the first Italian-American justice.
Partisanship has replaced patronage. Before Amy Coney Barrett’s confirmation the entire court was the product of either Yale or Harvard Law School and remains entirely Catholic and Jewish. Remarkably considering American history, no one really minds.
By seeking to exploit the fait accompli of legal fiat as a tool of policy making to an extent never seen before, Mcconnell shares (much more than he would ever admit) a project with Trump. Both now – and their wider movement – devote intellectual resources to justifying power and policy by electoral means where they can, by force or trick where they must.
Will they get away with it? American politics increasingly resembles a poker game that, barring one side folding or some divine intervention in the form of international crisis, is heading to some kind of showdown. The current situation isn’t sustainable, but no one can imagine what it looks like when it is no longer sustained.
The beauty of using the Supreme Court is that people have always done it, although not quite to the steroided levels presently employed for the reasons outlined above. Every escalation in political breakdown introduced by the Republican Party has been introduced under the cloak of precedent.
Trump and Mcconnell profit, in different ways, from a sense in all established democracies that with every new government we’ve seen it all before. A century into the universal franchise, governments of left and right still rise and fall for largely the same reasons they always have – “they came at us in the same old way and we defeated them in the same old way”. In an ageing electorate, people remember more and more governments, more and more broken promises, memories lengthen and patience shortens. Trump’s erratic behaviour did cost him eventually (and still will when he runs again) but a sense among some key swing voters that at least he’s different from what we usually get buys him a frustratingly large number of lives.
For McConnell, charges that he’s cynical hardly feel like a major revelation since he barely denies it, but more importantly everyone else is cynical too. Who isn’t above doing what’s convenient to get from point A to point B? McConnell’s surface statements justifying his own vacillations, most amusingly when he once voted against his own amendment, are roused with such little feeling they come as close to breaking the fourth wall of political manoeuvrings as possible without actually using Frank Underwood’s direct audience address. With Trump he shares utter shamelessness.
To gee up the energy to get mad at the Republican party is to constantly draw the distinction between bending the rules and breaking them. Most of what they’ve done has been done before, at less epic proportions and with more believable pretence. What’s changed is the shortcuts and loopholes in the system to get what you want have been inverted to become a whole rationale to block the democratic consequences of changes in demographics, the decline of christianity and cultural shift.
The Supreme Court has been the locus of the peculiar marriage of Trump and McConnell. At the point they meet are in the promises to rebel against the liberal drift of the recent past, to trash the system, but also to game it. A hard-hearted view of the world as it is, but also an impossibility and chimeric vision of where it can’t really go where Christian morality is imposed on an increasingly reluctant majority indefinitely. They will exploit the constitution until they break it.