In the wake of Ruth Bader Ginsburg’s death, John Oliver discusses the future of the Supreme Court, why the government doesn’t always represent the political leanings of the electorate, and how those issues will impact the next generation of Americans.
The Supreme Court: Last Week Tonight with John Oliver

Last Week Tonight with John Oliver
Season 7 Episode 24
Aired on September 27, 2020

Main segment: Mitch McConnell and the American electoral college
Other segments: Amy Coney Barrett Supreme Court nomination, 2020 United States Census.


Our main story tonight concerns the fact that last weekend, Ruth Bader Ginsberg died. Which was distressing enough, but has been compounded by the fact that just yesterday, this happened. Good evening, we begin with breaking news, the president nominating Amy Coney Barrett to the Supreme Court.

REPORTER: Barrett is a favorite of religious conservatives for her strong anti-abortion rights views. And if confirmed, would move the court to the right for a generation.

Right. Trump is about to replace a liberal icon with an extremely conservative justice who’s been called “the female Antonin Scalia,” and she could serve for a long time. Amy Coney Barrett is only 48. And I know that I make 43 look like 76, but trust me, that is young for a Supreme Court justice. And look, if, and almost certainly when, Barrett is confirmed to the Supreme Court, the impact could be dire. In recent years, key cases have been decided by just one vote, from upholding the Affordable Care Act to preserving DACA, to striking down an incredibly restrictive abortion law. Should those issues come before the court again, they could now easily go the other way.

And there is clearly no point holding onto hope that conservatives might choose to respect the precedent they set, by refusing to even consider Merrick Garland in an election year, because that was always in bad faith, as was obvious at the time. In fact, ahead of the 2016 election, Senator Richard Burr even privately said this to a group of campaign volunteers,

Yeah, that’s a Republican Senator committing to blocking a justice confirmation, not just in an election year, but for an entire presidential term. And just think about how long four years is. Four years ago, Harvey Weinstein was still producing movies. In the past four years, Harry and Megan began dating, got engaged, got married, left the royal family, and I think own Netflix now. And in the past four years, Leonardo DiCaprio’s girlfriend gained the right to legally drink alcohol. Two more years, and she’ll have no problem getting a rental car to move her belongings out of his house. Time is amazing.

And some republican’s think to rationalize their party’s blatant hypocrisy by saying that, should they confirm Trump’s nominee, they’ll simply be bringing the court closer to the will of the country.

Mitt Romney: I recognize that we uh, we may have a court which has more of a conservative bent than it’s had over the last few decades, but my liberal friends have over many decades gotten very used to the idea of having a liberal court. And that’s not written in the stars. It’s also appropriate for a nation which is, if you will, center-right, to have a court which reflects center-right points of view.

What the hell are you talking about, Mitt? Set aside the notion that a court that gutted the Voting Rights Act is a liberal court, since when is this nation naturally center-right? Did we all take a BuzzFeed quiz I’m not remembering, like, “Choose Your Favorite Fall Lasagna Ingredients And We’ll Tell You Which Direction the Nation’s Electorate Leans.” Because, for the record, more Americans say they align with the Democratic Party than the Republican’s, plus, poll after poll has shown Americans favor abortion rights with support of Roe v. Wade reaching record highs. While a strong majority of the public also supports Medicare-for-all. Oh, and incidentally, a solid majority say the winner of this presidential election should be the one to choose Ginsburg’s successor. So, our country isn’t so much center-right, as Mitt Romney is center-wrong.

Look, this has been a very dark week for a lot of people. The Supreme Court is about to lurch to the right for the foreseeable future. And if things seems hopeless right now, it’s because, to be completely honest, they basically are. This is a pivotal moment, and while we got here, a little bit by bad luck and bad timing, we also got here through diligent effort by Republican leadership, and crucially, some very big systemic problems, that just have to be addressed.

So tonight, let’s talk about that. Specifically, how the fuck we got here, and what the fuck we can possibly do next. And there are basically two major factors that brought us to this point. The first, is this man. Mitch McConnell, the only thing to come out of Kentucky more shameless than the KFC menu. How do you want your chicken? Regular, crispy, Cheeto flavored, in a warm slurry, as bread? ‘Cause it’s all on the table. At KFC we promise, maximum flavor for you, maximum disrespect for a chicken’s memory.

Reconfiguring America’s courts has been a single-minded focus for McConnell. Trump once marveled to Bob Woodward that, “You know what Mitch’s biggest thing is in the whole world? His judges.” And his obsession isn’t just with the Supreme Court, McConnell’s blockade of Merrick Garland justifiably got a lot of attention, but he also made sure that Trump would stack the lower courts with conservative judges, something Trump also explained to Woodward.


Okay. First, it’s weird to refer to anything as golden nuggets. Unless, you are talking about actual golden nuggets, or you’re describing you husband’s balls in the middle of his tiger-themed funeral while impersonating a priest. Those are the only two perfectly appropriate times.

But needless to say, Obama very much didn’t deliberately leave those vacancies open for Trump. When Republicans took the Senate in 2014, Mitch McConnell began systematically blocking lower court appointees, so a future republican president could fill the seats later. So Obama didn’t give Trump those judges, any more than the national archives gave Nicholas Cage the Declaration of Independence. In fact, Obama’s only ever given Trump two things, a brief tour of the White House, and a colossal inferiority complex that fueled Trump’s rise to power, and made him so furious he decided to turn America into an apocalyptic hell scape and destroy democracy as we know it. Really, just those two things.

And McConnell’s willingness to go to the mat for judicial appointments, was perhaps never more obvious than during the Kavanaugh hearings. Because, immediately after Christine Blasey Ford’s gut-wrenching testimony, McConnell apparently had this conversation with the president. Both of them were kind of testing each other a little bit, “where are you at on this,” you know, “How strong are you?” And McConnell basically says to the president, “You don’t worry about me, I’m strong as mule piss.” That’s his quote. “I’m strong as mule piss.” Uh, in other words, he’s not gonna let up. He’s not gonna give up, he’s not gonna surrender. Wow, that is extraordinary. Because it’s easy to forget that after Blasey Ford’s testimony, Kavanaugh’s confirmation felt a lot less certain, and to react to what she said with, “Don’t worry, I’m strong as mule piss,” is both horrendous and deeply weird.

Quick side note, I wasn’t sure how strong mule piss actually is, and the internet is surprisingly short of videos of mules urinating. Although, we did manage to find this stock footage titled, “Donkey who urine at sunset.” And I have to say, that is an impressively strong stream. So, I do totally get it now. And going forward, every time I think of Mitch McConnell, I will think of that donkey… who urine at sunset.

But as easy and fun as it is to blame Mitch McConnell and his mule piss for everything, it is a mistake to focus just on the people involved here. Because there is a whole system underneath them that has enabled them to do what they have done.

And that brings us to the second major factor that got us to where we are now. The deeply undemocratic nature of America’s institutions. Because there is no doubt the Republican party currently controls both the Senate and the White House. It’s true, and they will argue that this gives them a mandate to do exactly what they’re doing.

Ted Cruz: Chris, the Senate majority is performing our constitutional duty and fulfilling the mandate that the voters gave us. Voters have elected a Republican president, they’ve elected a Republican Senate, and I think republicans need to keep their promises here, and that’s what I intend to do. The American people elected President Trump and a republican majority because we want the Constitution and Bill of Rights protected and that is our job, it’s what we need to do.

I do not like that man, Ted Cruz, I do not like his backward views. I do not like his stupid suits, I do not like his cowboy boots. I do not like him when he sneezes, I do not like him eating cheeses. I hate to see his dumb face smirking because his beard looks like a merkin.

But look, let’s talk about that mandate. Because neither the presidency nor the Senate are nearly as reflective of the will of the American people as they are suggesting there. First, take the White House. A democrat has won the national popular vote in four out of the last five elections. But we’ve spent 12 of the last 20 years with a Republican in office. And that is because the Electoral College with its winner-take-all approach in most states, can distort the will of the majority. On top of which, it grants disproportionate power to less-popular states, which tend to be rural and more conservative. Something which is even more pronounced in the Senate, where there are 15 states representing 38 million people that have 30 Republican senators. Even though that is less than the total population of California, which has just two Democratic ones. And that’s before we even get into the fact that places like Puerto Rico, Washington D.C. where the populations are largely Black or Hispanic, don’t have representation in the Senate at all. In fact if you take all of this together the Senate…


And it’s clearly not great when the best thing you can say about your representative democracy is, “Hey, at least Black people got above three-fifths this time. At this rate, they could count as 100-percent of a white person as early as 2408. Onwards and upwards, Black people, you truly are an inspiration to Hispanic half-people everywhere.”

So the fact is, when Barrett is confirmed, a president who lost the popular vote will have picked a quarter of the federal judiciary. And a third of the Supreme Court. And his choices will have been rubberstamped by a Senate republican majority representing 15 million fewer people than the democratic minority. And if that sounds absurd to you, it’s ’cause it clearly is. Especially when those courts have allowed republicans to set wildly unpopular policy that wouldn’t actually pass muster with voters.

And that brings us to our final question of what can now be done. Well for democrats, the first priority is to try to take control of the White House and both chambers of Congress this November. Which, given everything we’ve just discussed, is by no means a certainty. Not only for Trump winning an election outright, even if he doesn’t, he could, as he’s repeatedly indicated, refuse to concede and force the result into the courts. And that possibility is clearly part of his haste to get a justice confirmed before the election. Because he’s not even trying to hide it now.

We need nine justices. You need that. With the unsolicited millions of ballots that they’re sending it’s a scam, it’s a hoax. Everybody knows that. And the democrats know it better than anybody else. So you’re gonna need nine justices up there, I think it’s gonna be very important.

Okay, there is a number of dark insinuations there. Including, “it’s important for us to choose the next justice so they can decide what the American people choose.” And that makes it pretty clear that for Trump having an additional Supreme Court appointment is absolutely crucial to his re-election. As crucial, say, as angry white people wearing red hats, Facebook posts from undercover Russian operatives, and, based on his campaign’s online store, selling Trump coloring books that even the kids in the ad look bored by. What is going on there? The younger kid isn’t even paying attention, and the older one looks like he’s trying to will the coloring book into becoming a Nintendo Switch with his eyes. Also, why aren’t they coloring in the coloring book? The father seems to be reading it to his children which is objectively the one wrong way to enjoy a coloring book.

But look, let’s say for the sake of argument, democrats do manage to sweep the upcoming election. The biggest mistake would be to think that has, in itself, fixed everything, or indeed, anything. Because there is no point getting power unless you’re then willing to be bold enough to use it to make significant structural change. We’ve argued before that the filibuster should be abolished. That would allow legislation to get passed with a simple majority. It is admittedly risky. Especially for a party, that again, for structural reasons, can expect to be in the minority more often than it should. But those very factors make it extremely hard for democrats to win a filibuster-proof super majority and do anything meaningful.

What is frustrating is that some centrist democrats like Joe Manchin, honestly seem to think that even if they somehow significantly get more power the best way forward is to try to return to a more civilized, moderate era in American politics.

I will make every decision I can that keeps the Senate bipartisan. For simply that. We’ve got to fight for basically who we are as a Senate. Can we represent the people in a bipartisan way, democrats and republicans?

Oh, I’ve got an answer to that question for you, Joe. No! You can’t! It seems the message Manchin would take from America surging to the left against the odds would be, “I think they want us to work with the republicans.” And that is not just dumb, that’s dumb on the level of James Cameron going, “You know what people want? Four more Avatar movies.” And to both of those men I say this… “No one wants that, stop talking about it, and just give us what we do want, one more good Terminator movie and a Green New Deal. I don’t care which of you does which, just get it the fuck done.”

Although, I will say, even if the democrats sweep the election, and even if they then get rid of the filibuster, and then have the courage to pass major legislation, those laws are now increasingly vulnerable to a more conservative Supreme Court striking them down. And that has led some to suggest taking the more dramatic step of expanding the Supreme Court by adding justices. It is possible. The Constitution doesn’t specify how many seats there should be, and it can and has been done in the past, through a simple act of Congress. Although, there are real concerns about what the eventual blowback to that would be. Because it doesn’t take a genius to imagine what republicans would do next time they took control of the government. Seriously, it doesn’t take a genius. They want to pack the court. You know what that means? They want to put on a lot of justices. These are things that are just horrible, and I guess we could do that too, right? We could do that too. Yeah, he’s right. He could absolutely do that, which is undeniably chilling. Expanding the court is a bit like doing Yoga naked. One way to dampen your enthusiasm of the idea is to picture Donald Trump doing it too. Court expansion could open the door to a never-ending cycle of both parties doing it, which could permanently destabilize one of the bedrock institutions of American government. Now, does that outweigh the potential for a court with Barrett on it? Undoing and blocking years of protections for our climate, healthcare, and civil women’s rights? That is definitely worth considering.

Nothing should be taken lightly here, though I will say there are some other steps we could take that should be impossible to argue with at this point. Steps that would make both the Senate and White House more representative of the electorates. On the senate side, you could grant statehood to Washington D.C. and, if voters there wanted, Puerto Rico. That would not only help balance out the Senate’s bias towards white, rural voters. It’s also the right fucking thing to do for the almost four million Americans who currently have no senatorial representation whatsoever, which is just astonishing. That’s roughly the population of Rhode Island, Maine, Montana and Wyoming combined.

Now, as for the presidency we have to get rid of the electoral college which might sound radical, but it really isn’t. It’s not even a new idea. In fact in the late ’60s, it very nearly happened. Here’s Birch Bayh, the senator who spearheaded those efforts making what is, in retrospect, a pretty convincing case.

There is a great danger with the presidential electoral college system of electing a minority or a non-plurality president, of electing a president who has fewer votes than the fella he’s running against. When we have an electoral college system which threatens to elect a man who has fewer votes than his opponent, we tend to erode the confidence in the people of this country and their president and in their form of government.

Right. And as someone who has lived through the exact hypothetical he just described, and twice, I can report that confidence in the government hasn’t been so much eroded. Erosion is a slow dignified process as much as it’s being hit by an asteroid full of sentient, nuclear jackhammers until it collapsed in on itself like a star inside a blackhole. Back then the idea of abolishing the electoral college had bipartisan support then President Nixon even urged Congress to go through with it writing…


Which does make sense because if there’s one thing we know Nixon was not a fan of, it’s leaving elections up to chance. And there are six things we know he wasn’t a fan of it’s: Jews, Blacks, hippies, snitches, living Vietnamese people, and then leaving elections up to chance. Miss ya, Dick.

But obviously, we didn’t end up doing away with the electoral college in 1970 because the legislation was ultimately blocked by, you guessed it, a fucking filibuster. And even today the idea has widespread support with 61 percent of Americans saying we should abolish the electoral college. But Republicans will fiercely defend it. In fact, when a movement to switch to a national popular began picking up steam a decade ago, Mitch McConnell said Republicans need to…


But the beauty is the movement McConnell was talking about there doesn’t necessarily require his cooperation or indeed an act of congress at all. Because a group of states have quietly signed on to an interesting potential workaround.

NARRATOR: Recently 15 states and the District of Columbia joined the National Popular Vote Interstate Compact. They’re pledging to give their electoral votes to the candidate who wins the national popular vote rather than the person who wins the popular vote in their state. But this won’t take effect until enough states adopt it, which so far hasn’t happened.

Yeah. It’s kind of amazing. Very basically. If enough states just pretend the electoral college doesn’t exist, it could functionally disappear. It’s the same approach every Harry Potter fan is currently trying to take towards J.K. Rowling. “Obliviate! You go, the books stay.”

Now, for this idea to take effect, setting aside the legal hurdles it would almost certainly face, it would need states representing 270 electoral votes to sign on. It currently has 196 which is a lot, but need 74 more which would be increasingly hard to get. And obviously, the better way to abolish the electoral college would be to do it through a constitutional amendment, but that is even harder. And I will say, there are other ideas for significant reform such as setting time limits for Supreme Court Justices which, we’ve argued before, we should absolutely do.

The point here is it is pass time for big change. And perhaps that’s why Republicans like Kevin McCarthy already seem to be freaking out.

The Democrats believe it has to be their way or no way, but now it’s a new extreme. They wanna expand the court. They wanna bring new states into the union. Anything that rigs the system on their behalf. Instead of believing in the rule of law.

Okay. First of all, fuck you, Kevin. If there’s one group of people who don’t get to complain about their opponents going to extremes to get what they want, it’s congressional fucking Republicans. And secondly, we’ve expanded the court before and we’ve added states before. We added two states in 1959. We didn’t fight World War II with 50 stars on the flag. America is constantly shifting, and granting DC and Puerto Rico statehood or ending the electoral college would actually make our system more democratic rather than less.

Because the unavoidable truth here is that the system is already rigged, and it’s rigged in a way that has allowed a party without popular support to drastically reshape an entire branch of government for the foreseeable future by appealing almost exclusively to white voters in some of the least populous regions of the country. That is not a mandate. And it’s not democracy. It’s a fucking travesty. We are at the end of a generational battle, and the heartbreaking thing is we lost. And that hurts. It’s gonna hurt for a long time for a lot of people in ways that could take a while to fully comprehend. But the next battle has to start right now. And it will be long. We didn’t get here overnight. And we won’t get out of here overnight. But we must be willing to fight tirelessly and with every tool and tactic at our disposal, because sometimes fighting fire with fire is not enough. You have to fight mule piss with mule piss.


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