It started with Bush v. Gore, when five conservative justices abruptly halted the recount of Florida's ballots in the 2000 election and made George W. Bush president.
The unsigned majority opinion unmasked (to use the word of the moment) the unprincipled and unmistakably results-oriented nature of the decision with this lovely little sentence: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
Translation: Don’t you dare use this case as precedent in any future decisions. We’re just doing this to achieve the outcome we want in this election.
Bush v. Gore had consequences for the court itself, because Bush got to pick two Supreme Court justices. He chose John G. Roberts Jr. as chief justice. Roberts, it's worth noting, went to Florida as a volunteer lawyer advising then-Gov. Jeb Bush, who had a rather large interest in his brother's victory. Can we please acknowledge that few court nominees are pristinely above politics?
Later, Bush filled his second vacancy with Justice Samuel A. Alito Jr., and he and Roberts were key to two of the most activist decisions in court history on matters central to how our elections work.
In 2010, Roberts and Alito voted with the 5-to-4 majority in Citizens United that overturned decades of law and precedent to widen the gates to big money in campaigns. Then, in 2013, they were integral to another 5-to-4 decision, Shelby County, that gutted the Voting Rights Act. Many Republican-controlled states rushed in with new laws, including voter ID requirements, that impeded access to the ballot by African Americans and other minorities.
You do not have to believe in conspiracies to see how Shelby County and Citizens United fit together. In tandem, they empowered the most privileged parts of our society and undercut the rights of those who had historically faced discrimination and exclusion. They also tilted the electoral playing field toward Republicans and the right.
So let's can all of these original-sin arguments about who started what and when in our struggles over the judiciary. From Bush v. Gore to Citizens United to Shelby County, it is the right wing that chose to thrust the court into the middle of electoral politics in an entirely unprecedented and hugely damaging way.
And the Republican-led Senate was ready to use any means necessary to hold on to this partisan advantage. When Obama chose Garland for the court, he picked the nominee Republicans themselves had said they could confirm. In 2010, for example, Sen. Orrin Hatch (R-Utah) called Garland "a consensus nominee" about whom there was "no question" that he would win Senate confirmation. Hatch's view became inoperative when Garland threatened to break the conservatives' 5-to-4 advantage.
Obama took grief from many progressives who saw Garland as too moderate. Gorsuch, by contrast, passes all of his side's litmus tests. During the campaign, Trump added Gorsuch to his roster of potential justices in response to lists from the Heritage Foundation and the Federalist Society. There is nothing moderate about Gorsuch except his demeanor. The demand for a 60-vote threshold is really a plea that Republican presidents put forward choices who can win broad support by reflecting Garland-style restraint.
In the coming days, we will hear moans about how terrible filibustering a Supreme Court choice is. Democrats will be dismissed as catering to “their base.” Justified outrage over the blockade against Garland will be reduced to score-settling, as if those who started a fight should be allowed to recast themselves as pious, gentle peace-lovers when the other side dares to strike back.
It's said that with the odds against them in this fight, progressives would be wise to back off now and wait for the next battle. But graciousness and tactical caution have only emboldened the right. It's past time to have it out. From now on, conservatives must encounter tough resistance as they try to turn the highest court in the land into a cog in their political machine.