Amy Coney Barrett was confirmed to the Supreme Court Monday along a near party-line vote, cementing a strong conservative majority on the nation’s highest court just over one week before Election Day.
With a 52 to 48 vote, Republicans put Barrett on the Supreme Court for a lifetime appointment without the support of a single Democrat. Sen. Susan Collins of Maine was the only Republican to vote against Barrett. The speed of the confirmation process, the stakes for the balance of power on the Supreme Court and the proximity to Election Day are expected to motivate voters on both sides of the aisle to express their support or dismay over the outcome at the ballot box.
Historically, the courts have been a stronger catalyst for Republican voters to head to the polls than for Democrats, conservative and liberal groups agree. But that might change this year. Progressive judicial advocates say the courts are finally becoming as much of a rallying cry for their base as they traditionally have been for conservatives. “With the election so close, a lot of people are channeling their anger and outrage into electoral action,” says Chris Kang, chief counsel of progressive judicial advocacy group Demand Justice.
In 2016, the Supreme Court vacancy left by Justice Antonin Scalia’s death may have been decisive in convincing conservative voters to support Donald Trump. National exit polls showed that 21% of voters said the Supreme Court appointment was “the most important factor” in their decision, and those voters favored Trump over his opponent, former Secretary of State Hillary Clinton. “Supreme Court nominations unite the Republican Party,” says Mike Davis, president of the Article III Project, a group that fights to confirm Trump’s judicial nominees. Now, as Trump trails former Vice President Joe Biden in national polls, “Judge Barrett’s nomination is helping President Trump climb out of the hole and it will put him in a place where he can stun the world again with an upset victory,” Davis says.
In the weeks since Justice Ruth Bader Ginsburg’s death, a constellation of conservative groups have thrown money and support behind Barrett’s nomination on a larger scale than for either of Trump’s two previous Supreme Court nominees, three communications professionals who helped coordinate the effort say. The major organizations in this ecosystem on the right, including Judicial Crisis Network, Heritage Action for America, Club for Growth and others, spent nearly $30 million in total to support Barrett’s nomination, according to these professionals. “The entire conservative movement, from social issue groups to economic groups, pretty much the whole gamut, was involved,” one of the communications advisers says. The effort this time around was “much, much more energized even than [Brett] Kavanaugh and [Neil] Gorsuch.”
Those involved say that energy was particularly pronounced for Barrett because of the proximity to the election and because Trump has confirmed more than 200 federal judges during his first term, delivering on the vow he made to conservatives during his 2016 campaign. “The enthusiasm is even higher because we know that he keeps his promises and has gone above and beyond expectations,” says Mallory Quigley, Vice President of Communications at Susan B. Anthony List, an organization seeking to end abortion. “With the Barrett nomination coming this close to the election, it’s just incredibly exciting and really fuels the voters that are going to make a difference on the margins in battleground states,” she says.
Susan B. Anthony List has been canvassing voters in key states including North Carolina, Pennsylvania, Michigan and Wisconsin. Heritage Action, a conservative policy advocacy group, has also been on the ground door knocking in North Carolina, Pennsylvania and Wisconsin, as well as in Iowa. Jessica Anderson, executive director of the group, says the swing voters Heritage Action has been talking to in those states have responded to what they perceive as Barrett’s personal integrity, her jurisprudence and her family life, “and they’re associating that with the president,” Anderson says, “which is a good association for a swing voter that we’re trying to turn out for a conservative vote.”
But if the right was prepared for a pitched battle over Barrett’s confirmation, so too was the left. And that, progressives say, could make a difference at the ballot box this year. Barrett is Trump’s third Supreme Court justice confirmed in his first term, after the highly fraught 2018 confirmation of Kavanaugh, who was accused of sexual assault, which he denies. “We are working on this baseline level of activation around the courts that we haven’t had before,” says Kang. “It was sort of built during Kavanaugh and coming to fruition here.”
There’s polling to support the idea that Barrett’s confirmation could help Biden on Nov. 3. While a Politico/Morning Consult poll conducted from October 16-18 found that 51% of voters thought the Senate should vote to confirm Barrett, voters in the same poll said they trusted Biden to handle the Supreme Court over Trump, 46% to 39%. A New York Times/Siena College poll conducted from October 15-18 found voters trusted Biden over Trump by a six-point margin to choose Supreme Court justices. And in a Washington Post/ABC News poll conducted September 21-24, nearly half of Biden supporters said the Supreme Court vacancy made it “much more important” that Biden win the election, whereas 62% of Trump supporters said the vacancy made “no difference” in how important it was for Trump to win.
“The Trump Administration assumed that the rightwing base of the party would be galvanized by this nomination to vote, but I think on the contrary, progressives were ready for this fight and understand the huge stakes with her confirmation and are engaged like never before,” says Nan Aron, president of Alliance for Justice, a liberal judicial advocacy group.
The day after Ginsburg died on Sept. 18, Aron, who has been working on judicial issues for decades, was asked to speak at a rally at the Supreme Court. “I thought, I’ll go, and there will be 100 people there,” he recalls. But when she showed up, she instead saw what she estimates to be about 2,000 people in the crowd. “They were certainly there out of deep reverence for Ruth Bader Ginsburg, but also out of fear and anger that the president promised to appoint another justice who everyone knew would undo Ruth Bader Ginsburg’s legacy on the court,” Aron says. “It wasn’t just court watchers who were inspired by her work as a lawyer, a law teacher and a justice, but women throughout the country— and men— who saw that their lives were improved because of her being on the court.”
Now that Barrett has been confirmed, her lifetime tenure on the Supreme Court is assured. Voters still have eight more days to make their decision about whether Trump or Biden should be the next president. Whatever man America chooses, Barrett will outlast him.