When the Federalists lost the election of 1800 they immediately passed the Judiciary Act of 1801 before Thomas Jefferson and the new Congress could be sworn in. Through it and its twin Organic Act for the District of Columbia, Federalists created 16 new federal circuit judgeships, two dozen D.C.-area justices of the peace, and scores of new positions in the judicial branch. Why? So they could dig themselves into the still-new federal government, better able to undermine Jefferson (Federalists called him “radical”) and his promise to steer government in new directions. Indeed, Adams filled the new positions with what came to be called the Midnight Judges. Jefferson and the new Congress soon repealed the laws, wreaking havoc in the judiciary, but ousting the internal moles. (Their actions also triggered the critical Supreme Court case, Madison v. Marbury.) Why revisit this, here 223 years later?
Because Mitch McConnell and modern Republicans have successfully recreated a similar dynamic, but with patience and time rather than one brazen act. Today’s Republicans lose elections as the country changes, going in directions different from Republican policies and politics. They do win statewide elections in traditionally conservative states, but they rarely win popular votes against Democratic presidential candidates any more. In states where voters vote more for Democrats for Congress and state legislatures, Republicans have gerrymandered districts in such as way that they gain more seats even if they didn’t win more votes (see, e.g., Wisconsin). Now let’s add in the U.S. Senate.
Constitutionally and in a vacuum the Senate is not inherently biased towards Republicans. But when you consider the increased number of states and add in the population trends of the twentieth century, when people gravitated to cities, many states were left with lower-population rural areas, but dominant Senate numbers. It’s the old rotten boroughs that Englishmen and indeed American revolutionaries pledged to get rid of as anti-democracy. Voting polarization then created Red states with more U.S. Senate members than Blue states with more total population but fewer Senators.
So, Republicans have inflated numbers in the U.S. House (and state legislatures) due to gerrymandering and inflated numbers in the U.S. Senate due to population trends and the Constitutional structure that rewards political lines rather than population totals. Now, with voters trending away from Republicans (yes, there are still exceptions, but overall the trend is long-term), how can Republicans maintain a grip on the levers of power?
McConnell has used his decades in the Senate, usually in leadership positions, to embed Republicans in the judiciary. He does so by use of the filibuster when necessary and by use of the Constitutional Senate advantage to Republicans noted above. But…it’s not just putting Republicans in control of the courts whether voters approve of Republican policies than not. With the misnamed Federalist Society, with Leonard Leo and millions in dark money, and now with the 2025 Agenda of the Heritage Foundation, he and his allies have made clear their intent is to lock in anti-democratic governance permanently. The judiciary has been remade to march America back to the 19th century against our will. (Judicial conservatives have long decried the “Constitution in Exile”, angry that society and judicial interpretation has gravitated to a more inclusive and egalitarian interpretation of reality.)
What McConnell did not foresee, I think, is that by the time that his long-range machinations matured, Donald Trump would climb to the top of the anti-democracy heap. Trump has added authoritarianism into the mix of anti-modernization, anti-equality forces and chaos ensues. An authoritarian in a system where democracy has been tied down, a la Gulliver, is a recipe for chaos and catastrophe. Trump’s and Leo’s judges will turn on everyone—promising judicial retribution, wedded with executive power, against any and all who stand in their way. Even McConnell. Oh, the irony. Woe, the United States of America.
Hey Doc, you need to write a rant on the wretched Roberts Court Presidential Immunity decision. When Trump wins (he will), have mercy on us, O Lord. The Union is going down the tubes, I fear.