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Opinion Nightmare ahead: Imagine the damage a 6-3 conservative Supreme Court could do

Senate Majority Leader Mitch McConnell (R-Ky.) and President Trump in Washington in 2019. (Melina Mara/The Washington Post)

As President Trump and Senate Majority Leader Mitch McConnell (R-Ky.) prepare to confirm a replacement for Ruth Bader Ginsburg and give conservatives a 6-3 majority on the Supreme Court, Democrats risk being pulled into a brier patch of procedural arguments. In fact, they may jump right in, because they’re so convinced they’re right and so frustrated by the bad faith of Republicans.

They need to understand: A long argument about process and rhetoric is just what Republicans want. It’s the only thing that will stop this controversy from making Trump’s defeat in November significantly more likely. Republicans are more than happy to waste time talking about Senate procedures and who said what four years ago, because for them this is about one thing: power. If you have it, you can withstand all the criticism in the world.

Questions of power surround everything Republicans believe and know about the Supreme Court. Holding and enhancing the court’s conservative majority is about guaranteeing the privileges of the powerful and limiting the ability of those with less power — workers, minority groups, poor people — to receive the meaningful protections of the law. It’s about undermining government’s power to address societal problems. And, perhaps most of all, it’s about enabling the GOP to continue to hold political power despite enjoying the support of a minority of Americans.

Conservatives are winning the battle for America’s courts, a triumph decades in the making. This is how they did it. (Video: The Washington Post)

Live updates on Ruth Bader Ginsburg’s death

There is no better evidence than the status of the court itself: Despite the fact that the Republican presidential candidate has won the most votes in only one of the last seven presidential elections, in a matter of weeks the court could have a 6-3 conservative majority. The court has thus become one of the three foundations of Republican minority rule, the others being the electoral college and the Senate, where Wyoming’s 600,000 residents get two Republican senators to match the two Democrats who represent 40 million Californians.

Maintaining that minority rule has been one of McConnell’s most important projects, and the Supreme Court lies at its center. Here’s how it works: Trump becomes president despite losing the popular vote (what in other countries they call “the vote”) to Hillary Clinton; he then appoints justices who solidify the conservative majority on the court; those justices then rule that, for instance, the partisan gerrymandering at which Republicans are so adept is perfectly fine.

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That enables Republicans to win even when they lose, as they did in Wisconsin in 2018, where state assembly districts are so brutally gerrymandered that Democratic candidates got substantially more votes overall but Republicans still walked away with nearly two-thirds of the seats.

A newly enhanced conservative court majority will continue to erode voting rights and rubber-stamp GOP voter suppression; before long they’ll probably declare nonpartisan redistricting commissions unconstitutional so Republicans can crank gerrymandering up even higher.

That’s just one of the substantive matters at stake in this argument over the future of the Supreme Court. And that is what Democrats should be talking about: not procedures, not parliamentary maneuvers, not what Republicans said in 2016 about Merrick Garland, but the dire consequences for all of us when the court moves even further to the right.

That means Roe v. Wade, which polls show about two-thirds of Americans want to stay intact. Asked in a 2016 debate with Hillary Clinton whether he wanted to see Roe overturned, Trump predicted that this would happen “automatically,” because he will put “pro-life justices on the court.”

Even more urgently, it means the Affordable Care Act could be struck down, in a case the court is scheduled to hear this fall. If the administration and Republicans succeed, it would mean about 20 million people immediately losing their health coverage and tens of millions more losing protections for preexisting conditions.

Which do you think McConnell would rather talk about: the ACA being struck down, or how many days of floor debate a Supreme Court nominee ought to get?

That’s where Democrats’ focus should be: the threat a far-right Supreme Court poses. That court could take health care from millions, attack abortion rights, continue its war on collective bargaining and workers’ rights, eviscerate campaign finance laws to make it easier for the wealthy to buy elections, roll back environmental protections, and so much more.

Even if Joe Biden is elected and Democrats win the Senate, a conservative Supreme Court could strike down every law they pass as they try to enact the mandate they were given by the voters. That’s the future Americans need to consider.

But isn’t the public on Democrats’ side on the procedural question? Sure. The first round of polling shows a majority of Americans saying Trump should hold off on appointing a successor to Ginsburg.

But polls in 2016 showed that large majorities of the public thought Garland should have been granted a hearing and a vote. And do you know what McConnell would say to that? He’d say, “Who cares?”

That was a debate he was perfectly happy to lose, because he got what he wanted: a Supreme Court seat. Democrats got the satisfaction of knowing they were in the right. In other words, they got nothing.

If they don’t create the pressure necessary for a few Republicans in the Senate to fear what will happen to them if they let this nomination go forward before the next inauguration, Democrats will lose again. And the stakes are far higher this time around.

Read more:

Max Boot: Ginsburg’s passing may worsen the crisis of our democracy

The Post’s View: In Pennsylvania, a win for democracy — and a loss for President Trump

Fred Hiatt: Republicans’ and Democrats’ nightmares are not equivalent

E.J. Dionne Jr.: The Supreme Court struggle is about democracy

Karen Tumulty: Senate Republicans are showing us why they should lose their majority

Greg Sargent: Trump’s latest Supreme Court spin unmasks the GOP’s vile game