Carl von Clausewitz is credited with saying war is the continuation of policy by other means.
Increasingly, opinions of the Supreme Court are the continuation of legislation by other means.
There was plenty of weeping and gnashing of teeth as the court wrapped up its term, with sweeping rulings cheered by conservatives. Cases that overturned the landmark Roe v. Wade decision, curtailed the power of administrative agencies and expanded gun and religious rights unmistakably marked the court’s conservative turn.
But this just didn’t happen. Like a space launch, the court’s work in the past two weeks was the result of a yearslong, carefully planned and consistent effort by conservatives who put in the hard work.
And no, they didn’t always play fair. Then-Senate Majority Leader Mitch McConnell refused to meet with former President Barack Obama’s nominee, Merrick Garland, let alone hold hearings or a vote. His stated reason: A comment made by Sen. Joe Biden in 1992 that a judicial nomination should not be taken up during a presidential election year. (Garland was nominated on March 16, 2016, more than seven months until the presidential election.)
Of course, that was invented, both by Biden and McConnell. The Constitution says the president’s term is four years, and he presumably holds the power of nomination every day of that term. McConnell confirmed that principle — and his own hypocrisy — by rushing through the nomination of Amy Coney Barrett on Sept. 26, 2020, just 38 days before a presidential election.
The real McConnell rule — win judicial nominations at all costs — is one of the reasons conservatives had much to celebrate. But just part of the reason. A consistent strategy — what McConnell calls “the long game” — was every bit as important.
Roe v. Wade was decided in 1973, nearly 50 years before the court overturned it. The Clean Air Act — subject of a lawsuit against the Environmental Protection Agency’s regulatory powers — was passed in 1970, 52 years before its provisions were truncated by the court. New York’s law against gun possession outside the home had been on the books for years before it was overturned this term.
Republicans played the long game, sometimes playing dirty, because they knew that’s what it would take to win the court. If Democrats want to win, they will have to do the same.
It’s tempting to suggest the long game begins in Congress, because it’s the failure of Congress to pass durable legislation that makes the court a superlegislature, dictating policy that rightfully belongs to the legislative branch. The reasons for the dysfunction in Congress are myriad, as are the solutions — independent redistricting commissions, full disclosure requirements for political spending, expansion of voting opportunities so every eligible voter can cast a ballot, among others.
Instead, the tsunami of rulings left many Democrats despairing of whether the current political system can handle the critical mass of discontent that has brewed in the wake of the court’s rightward shift. That’s why you hear more radical solutions — adding Puerto Rico and Washington, D.C. as states, eliminating the legislative filibuster or expanding the court’s membership so it can be packed (or balanced, depending on your view) with more liberal justices.
If McConnell can bend the rules, why can’t Democrats? Is it the fact that they’ve lacked the kind of iron-willed leadership since the departure of Senate leader Harry Reid? Has the game become so rigged that its rules need to be defenestrated, and a new, more radical, ruthless politics installed so that the majority’s views hold more sway?
The reactions to the court’s rulings — and the fact that the court by at least one estimation is the most conservative since 1931 — have given rise to such suggestions. Whether we continue our political war by litigation rather than legislation remains to be seen.
Contact Steve Sebelius at SSebelius@reviewjournal.com.