How Mitch McConnell playing 'long game' shaped the Supreme Court and led to the end of abortion landmark Roe

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Supreme Court returns abortion rights to states

'The Big Sunday Show' panelists weigh in on the Supreme Court's decision to overturn Roe v. Wade and discuss the impact it has on the pro-choice and pro-life movements.

The Dobbs v. Jackson Women's Health decision which overturned Roe v. Wade was made inside the marble halls of the United States Supreme Court. However, it might not have been possible without a decision made years ago on the Caribbean island of St. Thomas, located about 30 miles east of Puerto Rico. 

On Feb. 13, 2016, then-Senate Majority Leader Mitch McConnell, R-Ky., stepped off a plane ready to enjoy a tropical vacation when he learned Justice Antonin Scalia died, according to his memoir, "The Long Game." With his members scattered all over the world and a GOP presidential debate the same night, McConnell promptly drafted a statement declaring that the next president would fill Scalia's seat, not then-President Barack Obama.

It was a risky move, made without the benefit of consulting his conference; however, it began a series of events resulting in former President Donald Trump appointing three justices in just four years – and led to what will long be considered a landmark decision in the history of the court. 

"I think it's the most consequential contribution I've been able to make to my country in the course of my career," McConnell told Fox News Digital regarding his focus on the federal judiciary in the Senate, not just in the Supreme Court or Dobbs. The Supreme Court in recent days also released major decisions hailed by conservatives on gun rights and religious freedom in schools. 

A decision by then-Senate Majority Leader Mitch McConnell, R-Ky., in 2016 was key in a chain of events that led to Roe v. Wade being overturned. (AP Photo/J. Scott Applewhite) (AP Photo/J. Scott Applewhite)

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"Those three justices are the ones who are making a difference here," Judicial Crisis Network president Carrie Severino told Fox News of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. "It's hard to overstate the significance of Mitch McConnell's leadership on this."

Justice Samuel Alito wrote the majority opinion in Dobbs, joined by the three Trump justices and Justice Clarence Thomas, creating a five-member majority to strike down Roe. Chief Justice John Roberts wrote a concurrence arguing that the court should not go so far as to overturn Roe in this case. 

"I think he deserves credit as the chief architect of what happened during the Trump years and creating a majority… to change Roe," University of Richmond Law School professor Carl Tobias said.

On the Dobbs decision specifically, McConnell told Fox News Digital: "The Supreme Court, in effect, corrected an error when in 1973, the court simply found something in the Constitution that was not there… What this decision does is simply return this very sensitive issue to the people's representatives."

Senate Republicans refused to hold a hearing for then-D.C. Circuit Court Judge Merrick Garland when former President Barack Obama nominated him to replace late Justice Antonin Scalia.  (AP Photo/Charles Rex Arbogast, File)

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Despite protests urging the Senate to take up Obama's nomination of then-Judge Merrick Garland to replace Scalia during 2016, McConnell and his Senate GOP blockade held until Trump won in November. Then, as Democrats filibustered Gorsuch's nomination to that same seat, McConnell managed to convince his reluctant caucus to "nuke" the 60-vote filibuster for Supreme Court nominees and seat confirm Gorsuch via simple majority. 

McConnell also led Senate Republicans through the chaotic Kavanaugh confirmation, sticking by the nominee despite a sexual assault allegation by a former high school classmate. Kavanaugh strenuously denied the allegation.

Then Justice Ruth Bader Ginsburg died in the closing weeks before the 2020 presidential election. With GOP control of the White House and Senate both potentially in jeopardy, McConnell needed to make another big decision on a Supreme Court vacancy and a presidential election. He made it immediately, on the same phone call a staffer informed him of Ginsburg's death.

Late Justice Ruth Bader Ginsburg died a few weeks before the 2020 presidential election, and Senate Republicans led by then-Majority Leader Mitch McConnell, R-Ky., quickly confirmed her replacement.  (REUTERS/Sarah Silbiger.)

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"I was in the kitchen in my home in Louisville by myself, and my cell phone rang. It was Andrew Ferguson, my counsel, a former Clarence Thomas clerk, to inform me," McConnell told Fox News Digital Tuesday. "I told Andrew that we would fill the vacancy. We had enough time to do it, and we would fill the vacancy, and we would fill it before the election."

Trump later nominated Barrett to the vacancy, and she was confirmed just over a week before the election.  

Many conservatives are effusive in their praise of McConnell for his handling of the Senate – and judicial nominations in particular – through the sometimes rocky waters of the Trump presidency. However, many liberals instead see a partisan actor who knows only how to justify what's politically expedient for him at a given time,

"Mitch McConnell is the dark lord," Harvard Law professor Lawrence Lessig told Fox News. "The framers of our Constitution thought we needed to fear one thing more than everything, and that was partisanship. And Mitch McConnell believes there's one thing we should promote more than anything, and that is partisanship." 

Senate Republicans fast-tracked Justice Amy Coney Barrett's confirmation process ahead of the 2020 presidential election. They eventually lost the Senate majority and the presidency. But Barrett last week was a key part of the majority that overturned Roe v. Wade.  (Win McNamee/Pool via AP)

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"He can't even imagine how there could be something different for him to be doing. He thinks this is his job," Lessig added. "I fear that thing the framers feared has come true… And Mitch McConnell, I think, is the poster child for that."

McConnell argues that what he has done on the court, particularly on the Scalia and Ginsburg seats, is within Senate precedent and norms. There was divided government in 2016, he argues, and a GOP Senate and president in 2020. 

Besides, McConnell says Democrats would have done the same thing if they were in power. He cited past comments Democrats made on that topic, including President Joe Biden when he was in the Senate. 

"These are crocodile tears from the left," McConnell said. "I know full well that had the shoe been on the other foot they would have done the same thing."

Tobias does not buy that explanation. "What happened in 2016 and then what happened in 2020 were again orchestrated by him… and almost unprecedented in terms of what the norms and understandings, customs and traditions of the Senate have been prior to that," Tobias said. "He deserves credit or blame or whatever you want to call it in terms of those norms losing their force and not being honored."

Mitch McConnell is the dark lord. You know, the framers of our Constitution thought we needed to fear one thing more than everything, and that was partisanship. And Mitch McConnell believes there's one thing we should promote more than anything, and that is partisanship. 

— Harvard Law professor Lawrence Lessig

The Roe decision last week led to protests around the country, which are continuing this week. Liberal lawmakers and pro-choice advocates are outraged over what they say is the effective elimination of a constitutional right and raising alarm about some state quickly moving to severely restrict or outlaw abortion. 

"This decision is an unprecedented attack on women’s rights and reproductive freedom, and the effects will be immediate and far reaching," the American Civil Liberties Union said in a statement. "Half the states in the country are expected to ban abortion, denying the 36 million women and other people who can become pregnant in those states the fundamental right to decide for themselves whether and when to become a parent."

"I don't understand the criticism. I guess these people don't trust the democratic process," McConnell said of those concerns. "The Supreme Court didn't outlaw abortion. The Supreme Court simply said the American people, through their elected representatives, will decide the future of this very sensitive issue."

Other Republicans recognize that McConnell played a role in transforming the court, but also give Trump significant credit for the three justices who were key in the Dobbs decision. 

Republicans also give former President Donald Trump credit for picking stalwart Supreme Court justices, when conservatives have been disappointed by other presidents' choices in the past.  (AP Photo/Patrick Semansky)

"I think that President Trump actually deserves though the lion's share of the credit because he has to nominate," Sen. Josh Hawley, R-Mo., told Fox News Digital. 

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"I'm grateful for Senator McConnell for being I think, very resolute on the confirmation process," Hawley added. "But… we've had Republican justices confirmed in the past who've been big disappointments. And that's really down to the president who nominates them,"

Sen. Mike Crapo, R-Idaho, also said Trump and McConnell share credit for reshaping the Supreme Court. So did former Senate Judiciary Chairman Chuck Grassley, R-Iowa, who also had a hand in the confirmation efforts. 

"The Supreme Court nominees that you're referring to were Trump nominees" Crapo said. "They were all rule of law oriented judges and justices… Senator McConnell showed strong leadership in the way that he managed the floor when he was majority leader." 

"What did we set out to do? What every Republican president ought to do, and not many of them have done it as good as Trump," Grassley told Fox News. "What do you want on the Supreme Court? It's pretty simple: Young people that are going to be judicial interpreters, originalist, strict constructionist and not be a superlegislature. So you end up with Gorsuch and Kavanaugh and Barrett."

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Lessig, meanwhile, sees McConnell's legacy as an impending collapse of the court's legitimacy. He said that in the Planned Parenthood v. Casey decision in 1992 that initially upheld Roe, the justices emphasized that if "the public perceives the Supreme Court bending under the political pressure of the executive, the respect for the court will collapse."

"I think that we're going to see the consequence of this court ignoring it after this decision," Lessig added. "We're returning to a much more familiar time in our history… when many people look at the court and say, you know, ‘who the hell are you? What are you doing? What reason is there for you to have this central role in our democratic institutions?’"

McConnell says it is actually Democrats rushing to tear down the Supreme Court as an institution. 

"You don't see me going over in front of the court like Chuck Schumer and calling out justices by name and threatening them with consequences," McConnell said. "If anybody's been attacking the court and its legitimacy, it's been the political left in this country up to and even including the decision of the Speaker [Pelosi] to sit on the court security bill we passed on a voice vote in the Senate last month, for an entire month."

As for Lessig dubbing him "the dark lord," McConnell, who has embraced several nicknames over the years, including "Cocaine Mitch," welcomed a new one into the fold.  

"My previous favorite name they gave me was Darth Vader, but I think I like this one even better," he said.