With Justice Stephen Breyer’s recent announcement of his planned retirement, conversations concerning who Joe Biden will appoint to the Supreme Court are abound. Nevertheless, the United States has not forgotten about the hypocrisy of the Senate Republicans regarding the nominations and hearings (or lack thereof) of Amy Coney Barrett and Merrick Garland, and what this means for the future of the United States. Mitch McConnell’s actions regarding Supreme Court nominations indicated the level of democratic backsliding that America was undergoing during the Trump administration, and should show us that even though we have a rule-abiding President now, we should never get too comfortable.

In March 2016, President Obama nominated Merrick Garland to the empty seat on the Supreme Court. Mitch McConnell, the Senate Majority Leader at the time, claimed that the vacancy should not be filled until after the 2016 election that November, in order to allow the next president to choose the justice, to give the voting population of America the chance to have a say in the SCOTUS makeup. McConnell claimed that this idea was straight from a 1992 Joe Biden speech, but this “Biden rule” is not a rule at all, and was not even considered a norm until 2016. McConnell’s insistence that the nomination was too close to the election, which was 8 months away at the time, was a thinly veiled attempt at hiding the true reasoning: Donald Trump, running on a populist and nationalist campaign, would nominate a conservative justice if he won that November, both things he was able to do. 

In 2017, after 293 days, Garland’s nomination expired, and McConnell’s “Biden rule” norm was persevered. Donald Trump nominated Neil Gorsuch, who was confirmed by the Senate. With the rule change that Senate Republicans passed in 2017, allowing justices to be confirmed with a simple majority vote. In September 2020, Justice Ruth Bader Ginsburg passed away, and McConnell immediately following her death stated that he and the Senate would fill the vacancy she left. Just like that, the norm created by McConnell himself was broken. Here, we can see a clear-cut symptom of the erosion of American democracy: toying of norms regarding the judicial branch. 

Even though the Trump administration is no longer the ruling regime of the United States, the effects of the democratic backsliding we witnessed from 2017 to 2021 are still present[2]. The term length of judges on the Supreme Court are for life, meaning that a Justice has no set retirement time. The judges that Trump nominated and were appointed still sit on the court today, and still carry along the Trump administration’s policies with them. 

Although it can be claimed that the current conservative makeup of the SCOTUS is a fault of the Republican majority of the Senate, the conservative majority can thank the background of hyperpolarization in the U.S. Legislature, another symptom (and effect) of democratic erosion. The judicial branch, meant to be a neutral and unbiased branch of the government focused on interpreting the Constitution, has become politicized in recent years. Over the past decade, each side of the aisle has more often than not voted exclusively along party lines, simply trying to block the appointments of the other party[1]. 

However, all hope is not lost. Lindsay Graham, a strong opponent of President Biden’s in the past, has stated that he will approve of a possible appointment of Judge Michelle Childs. Senator Graham previously was one of Trump’s greatest supporters, and even went so far as to yell and criticize other Senators during the confirmation hearing of Brett Kavanaugh. Biden has pledged to name a Black woman to fill the vacancy on the court, forcing the Republicans to somehow find a way to continue their hyperpolarization and not sound racist and/or sexist. A possible bipartisan voting group to confirm a Supreme Court Justice could be a good sign of the possible lessening of the hyperpolarization we see today. But, only time will tell. 

[1] Ginsburg, Tom, and Aziz Z. Huq. How to save a Constitutional Democracy. Chicago, IL: University of Chicago Press, 2020.

[2] Levitsky, Steven, and Daniel Ziblatt. How Democracies Die. New York: Broadway Books, an imprint of Crown Publishing, a division of Penguin Random House, 2019.