In their seminal work How Democracies Die, Steven Levitsky and Daniel Ziblatt identify two principal constitutional guardrails that, they argue, have allowed democracy to survive in the United States even in light of constitutional imperfections: mutual toleration and institutional forbearance (102). Mutual toleration is the recognition that one’s political opposition is, albeit possibly misguided, legitimate, and deserving of the right to compete for power and govern (102). Institutional forbearance refers to the notions that politicians ought to avoid acts which “while respecting the letter of the law, obviously violate its spirit” (106); that is, while in power, politicians ought to exercise restraint and not seek to cripple the opposition to such a degree that it will not be able to challenge them in the future (107). When these two norms are abandoned, Levitsky and Ziblatt claim, political competition devolves into a “no-holds-barred” conflict (101).
In this blog post, I argue that the saga of Amy Coney Barrett’s all but certain confirmation to the United States Supreme Court concretely illustrates Levitsky and Ziblatt’s posited hypothetical about how a failure to abide by the norm of institutional forbearance, motivated by an erosion of mutual toleration, could result in politics without guardrails (112). I contend that, in order to ensure that the Supreme Court remained ideologically conservative, Senate Majority Leader Mitch McConnell and his associates have played the type of “constitutional hardball” which Levitsky and Ziblatt advocated against, and may have led America to “constitutional brinksmanship” (112). Levitsky and Ziblatt’s posited causal mechanisms convincingly explains the sequence of events discussed, and their predictions, unfortunately, seem to be bearing out almost perfectly.
Nine months before the 2016 presidential election, mere hours after Justice Antonin Scalia’s sudden death was publicly announced, Senate Majority Leader Mitch McConnell made clear his intention to deny a confirmation vote on any Supreme Court nominee selected by then sitting president Barack Obama. Justifying his reasoning in a 2016 Washington Post opinion piece, he asserted, along with co-author and fellow Republican Senator Chuck Grassley, “Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court.” Regardless of the fact that nine Supreme Court vacancies had been filled during election years in the Court’s post Civil-War era, McConnell declared, “All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.” PolitiFact has since deemed the “long standing tradition” mentioned by McConnel to be false.
However, four years later, McConnell now seems to have reversed course. Although Justice Ruth Bader Ginsburg passed away less than two months before Election day, McConnell has promised Republicans, “President Trump’s nominee will receive a vote on the floor of the United States Senate.” In the aftermath of Ginsburg’s death, he has reworked the norm he had created, now implying that Garland’s nomination was rightfully blocked because “since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.”
This newfound justification is also, at best, misleading. As the Brooking Institution points out, “it’s not as if there were a string of election-year vacancies, some during unified government, which got filled, and others during divided government, which didn’t.” Rather, all five election-year vacancies from the 1890s until the 1950s occurred during times of unified government. From this lack of evidence, we cannot conclude that a divided government would not have confirmed a nominee of the opposite party’s President. On the contrary, precedent suggests that, had an election-year vacancy previously occurred in a divided-government, the presidential nominee would likely have been confirmed. For example, Justice Anthony Kennedy, who was nominated to the Supreme Court by Republican President Ronald Reagan in November 1987, was confirmed by a Democratic-majority Senate in 1988, the year in which President George H.W. Bush was elected.
Ultimately, there was no significant historical precedent which justified denying Garland a vote in the first place, and there certainly is no precedent which could justify blocking Garland’s nomination and then confirming president Donald Trump’s Supreme Court nominee, Judge Amy Coney Barrett. In order to ensure that Democratic appointees would not constitute a majority on the Supreme Court for the first time since 1970, McConnell fabricated a democratic norm out of thin air, and then almost immediately amended it in order to better serve his political purposes. While McConnell’s actions may not be eminently unconstitutional, they were certainly unprecedented, and beyond the scope of what his political opponents conceived as rightfully being within his power. Almost undeniably, they constitute the “dirty tricks” or “hardball tactics” that Levitski and Ziblatt assert are incompatible with institutional forbearance (107).
What motivated McConnell to abandon institutional forbearance? Levitsky and Ziblatt hypothesize that, “the erosion of mutual toleration may motivate politicians to deploy their institutional powers as broadly as they can get away with” (112). There is good reason to believe that, consistent with their hypothetical, McConnell’s behavior is attributable to a lack of toleration for the Democratic opposition. It is my view (and it is by no means an original view) that because Supreme Court justices serve for life, and because any one nomination can radically alter the balance of a Court for numerous generations, McConnel perceived the “costs” of a Democratic majority in the Supreme Court to be too high, and subsequently felt entitled to employ any means necessary to stop that scenario from materializing (112). Lending credence to this interpretation, in a 2016 speech in Kentucky, McConnell outright claimed “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy. ‘” Additionally, this view is generally supported by the trend of increasing partisan degradation observed by Tom Ginsburg and Aziz Z. Huq in How To Save a Constitutional Democracy (126) among many others.
Finally, the dire consequences that Levitsky and Ziblatt had predicted also appear to be bearing out. Needless to say, the left has been incensed by these developments. Most worryingly, prominent Democrats have begun calling for judiciary reform that would amount to “court packing.” In a tweet, Democratic Senator Ed Markey recently stated, “when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.” A number of prominent Democrats followed suit, including house Judiciary Chairman Jerrold Nadler and Representative Alexandria Ocasio-Cortez of New York. Just as Levitsky and Ziblatt had postulated, McConnel’s immoderate usage of his institutional powers now threatens to be met in kind. Moreover, if Democrats truly were to “pack” the Supreme Court, who can tell what type of Republican retaliation would follow?
The fact that Democrats today are even willing to publicly entertain the idea of packing the Supreme Court, something which, until recently, seemed all but unthinkable, itself demonstrates how a lack of constitutional forbearance can quickly set off a cycle of escalating constitutional brinksmanship, with potentially disastrous implications for the legitimacy of the Supreme Court and American democracy as a whole.
This was a cogently argued explanation for the political dynamics behind Amy Coney Barrett’s nomination. It points to a continued partisan degradation of norms which, although not by any means constitutionalized, have served to make government more functional, and as a result, more responsive to the electorate. You rightly point to the broader stakes of any Supreme Court vacancy as an important reason for an erosion of mutual tolerance. I would also suggest another factor specific to the state of partisan polarization today: the increasing polarization of the Court itself. With a decades-long series of 5-4 rulings on matters concerning unmistakable partisan interests — Rucho v. Common Cause, Citizens United, and, the paradigmatic Bush v. Gore — senators like McConnell see the appointment of purist originalists by brute force as the only way of ensuring Republican survival. With the ascendance of the Federalist Society, and the manufactured objectivity of originalism, the jurisprudence of ‘moderate’ justices like Sandra Day O’Connor, Anthony Kennedy has been all but erased. Even more obviously, the days of justices that dramatically bucked partisan expectations, represented most prominently in Justice Blackmun, are over. It is the disturbing reality of a rampantly politicized judiciary, and perhaps the only cure is structural reform akin to that being considered by Democrats.