McConnell’s Two Big Legacies: The End of Roe and the Forever Grip of Trump

The Senate Republican’s power plays haven’t turned out as planned.

(Photo by Alex Wong/Getty Images)

THREE YEARS AFTER the deadly January 6th attack on the U.S. Capitol and eighteen months after the Supreme Court overturned Roe v. Wade, Senate Republican Leader Mitch McConnell’s “achievements” are not turning out as planned.

The longest-serving party leader in Senate history, McConnell has wielded power ruthlessly to advance conservative goals. Yet it is increasingly clear that his legacy, so tightly intertwined with Donald Trump’s, has been built on a foundation of political miscalculations.

The conservative Supreme Court he and Trump co-created to overturn Roe’s longstanding constitutional right to abortion has triggered a sustained voter backlash across red states and blue. The entire country, meanwhile, remains trapped and threatened by the Republican party’s inability to move past Trump—even after he fomented a multi-front attack on democracy to stay in power.

Trump is now charged with 91 counts in four criminal indictments, two of them related to his “Big Lie” that he won the 2020 election and his alleged attempts to subvert it. As the 2024 primary season begins, polling shows that he’s on track to capture the GOP nomination for the third time, with even odds of winning his desperation play: a return to the White House, where he can deploy all the levers, authorities, and shields of the presidency to end his legal troubles or at least disappear them over a distant, perhaps posthumous, horizon.

The longer all of this goes on, the more McConnell—who was Senate majority leader when Trump loyalists stormed the Capitol—bears the burden of not stopping it, or at least trying, when he could have and should have.

While McConnell was livid about Trump’s role in the first non-peaceful transfer of power since 1861, his responses sent, at best, mixed signals.

The House impeached Trump one week after January 6th for inciting the violent insurrection that he hoped would derail Biden’s victory. McConnell controlled the Senate schedule until January 20, 2021, but he was unwilling to hold Trump’s trial while Trump was still president: He refused to reconvene the Senate for an emergency session and said that it would be better for the nation to try Trump after he left office.

Yet when the newly Democratic Senate voted 56–44 in February 2021 that it had the jurisdiction to put a former president on trial, McConnell joined most other Republicans in opposing such a trial as unconstitutional—“an argument he wasn’t even sure he agreed with,” Rachael Bade and Karoun Demirjian wrote in their 2022 book, Unchecked: The Untold Story Behind Congress’s Botched Impeachments of Donald Trump.

There was precedent for holding an impeachment trial for a former officeholder, as well as sound constitutional reason not to skip on a trial—since doing so would set a new precedent for future presidents, essentially giving them a free pass for abuses and crimes committed in their last weeks in office. McConnell himself wondered, according to Bade and Demirjian, why the Framers would “include a provision in the Constitution to bar someone from running for office ever again—only to limit a conviction to current officeholders?” Yet he voted against a holding a trial.

Four days later, as the trial closed, McConnell told his colleagues that he would vote to acquit Trump. Had he instead voted for conviction and encouraged others to so as well, he likely would have brought some Republican colleagues with him. In the end, fifty-seven senators voted for a conviction that would have barred Trump from future office—and while seven of them were Republicans, the total was still ten short of the two-thirds needed.

Just after the trial ended, McConnell gave a blistering speech calling Trump “practically and morally responsible” for provoking the January 6th violence, vandalism, fear, and disruption; blaming the House for not moving fast enough; and telling the country that “impeachment was never meant to be the final forum for American justice”—that criminal and civil courts could still hold Trump accountable.

Above the law no matter what

THOSE WORDS RING HOLLOW TODAY, as Trump generates delays designed to push his four criminal trials into late 2024, 2025, or even 2026, and states wrestle with whether to keep him off their 2024 primary ballots due to the Fourteenth Amendment ban on candidates who took oaths to support the Constitution then “engaged in insurrection or rebellion against the same” or gave “aid or comfort” to its enemies. There’s a bipartisan contingent arguing for disqualification and another bipartisan group convinced that would be too divisive, voters should decide, or Trump has not been convicted of anything . . . yet.

Trump’s legal machinations flow from the Trumpian fantasy that whether he’s in or out of office, he’s above the law. Justice Department veteran Andrew Weissman, who was lead prosecutor in Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 election, described one example:

It’s a maddening cycle that has forced state and federal investigators, prosecutors, election officials, and courts into an expensive and seemingly endless process of trying to hold one man accountable. The opportunity cost at all levels of government is astronomical when you consider the time, money, and head space that would be available if they were not consumed by coping with Trump issues. That includes a Supreme Court dominated by six conservatives, three of them Trump appointees, who are asked repeatedly to deliver the last word on Trump-era legal mayhem.

The conservative supermajority is McConnell’s handiwork. He started by stealing a high court seat from second-term Democrat Barack Obama after Justice Antonin Scalia died in February 2016—ten months before the next election and nearly a year before Obama’s tenure ended. But McConnell immediately claimed that wasn’t long enough: “The American people‎ should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”

Obama quickly nominated Merrick Garland, and as promised, McConnell blocked him. It was the most craven move I could remember in decades of reporting on politics—until nearly five years later when, by his own standards, McConnell stole another justice from Democrats. The Senate confirmed Amy Coney Barrett within a month of her nomination and eight days before Trump lost to Biden. So much for the people’s voice.

As a 2016 candidate, Trump said that he’d appoint pro-life justices and that overturning Roe v. Wade “would happen automatically.” He and McConnell got what they wanted. But since Roe’s abortion protections vanished in June 2022, voters in all kinds of states have turned out to oppose bans or protect access. Doctors are leaving or avoiding states where laws and bans and exceptions are unclear, and running afoul of them—even when a pregnancy is doomed or a threat to life, health, and fertility—can mean losing their license or even going to prison. Even in McConnell’s Kentucky, voters rejected a state constitutional amendment banning abortion in 2022 and Democratic Gov. Andy Beshear won re-election in 2023 in part by spotlighting a state abortion ban he has called one of the “most extreme” laws in the country.

McConnell didn’t lead on saving democracy

THERE ARE PLENTY OF WHAT-IFS when it comes to both Trump and abortion, and not just on the GOP side.

When McConnell blocked the Garland nomination in 2016, Obama could have ramped up to make it happen—a massive public pressure campaign and simply going ahead and installing a new justice by recess appointment because the people had already spoken (by electing Obama). Let the lawsuits come. Find another nominee if Garland chose to skip the fray.

Maybe that was unrealistic. Maybe it would have failed. But the fight would have made headlines and, just maybe, put enough glare on the Supreme Court to elevate both the stakes and voter turnout in the 2016 presidential election. And maybe then Hillary Clinton would have actually won, as opposed to too many Democrats carping about her, voting third party, staying home, and wrongly assuming she’d win anyway.

The late Justice Ruth Bader Ginsburg also missed a chance to head off today’s conservative supermajority. Obama hinted to her about retirement at a 2013 lunch, when she had weathered two bouts of cancer and, at 80, was the oldest person on the court. That went nowhere, but others persisted.

In March 2014, in a Los Angeles Times piece urging Ginsburg to retire, Erwin Chemerinsky—then dean of the UC-Irvine School of Law—warned that the GOP could take over the Senate that fall and the White House in 2016. Both of those things happened. He worried about a Roe v. Wade reversal in the second paragraph, and that happened too. Ginsburg died on September 18, 2020; Trump nominated Barrett on September 29; and the Senate confirmed her on October 26.

McConnell’s boldness deserted him when it came to Trump. He said in his speech after Trump’s acquittal that the defeated president had been determined “to either overturn the voters’ decision or else torch our institutions on the way out.”

But McConnell’s votes against a Senate trial and against conviction helped ensure that Trump would be free to wreak his usual havoc. McConnell could have stepped up. He could have taken a definitive stand, given his GOP colleagues political cover, and made the case to convict. He could have discussed help and support for people worried about primary challengers or even physical safety.

It might have worked, it might not have. Yet the Trump mob attacked police, terrified lawmakers and staff, chanted about hanging Vice President Mike Pence, and made clear they were there to prevent Biden from taking office. At least seven deaths have been connected to the attack. Over 1,200 people have been arrested and over 450 sentenced to prison. How could McConnell not have tried?

Liberals in particular have criticized Garland, now Biden’s attorney general, for pursuing bottom-up prosecutions of January 6th participants and slow-walking efforts to explore Trump’s role. The FBI started looking into a fake elector scheme in April 2022, over a year after first considering it. When Trump declared in November 2022 that he was running against Biden once again, Garland named a hard-charging special counsel—Jack Smith, straight from prosecuting war crimes in The Hague. Federal criminal investigations of election subversion attempts and classified documents mishandling kicked into overdrive and by last summer, Smith had indicted Trump twice.

It took an outsider to get this far. McConnell was far from alone in his abdication of leadership, but he was the Republican with the most power and opportunity to oust Trump—not from the White House but from politics and future public office—at the moment of his gravest offense against the country and Constitution. Instead of exercising that power, he found reasons not to. And three years later, here we are—with Trump’s stranglehold on the GOP tighter than ever, as Americans brace for yet another election with existential stakes.