By Phil Huber, ADVANCE COLUMNIST
Donald Trump did not create America’s constitutional crisis alone. He inherited a political system already weakened by leaders who treated constitutional duty as a partisan tool, then learned how to exploit every loose bolt, broken guardrail, and act of institutional cowardice.
Mitch McConnell and Senate Republicans did not set out to create a Trump monster. They set out to create what they considered the perfect conservative Supreme Court: Ideologically reliable, durable, insulated from voters, hostile to regulation, and ready to reverse decades of legal precedent.
They succeeded.
Then they learned the oldest lesson in politics: When you build power without brakes, you eventually hand the keys to someone who does not believe in stopping.
Call it the Trump monster. Call it Frankenstein. The more accurate metaphor is this: Conservative leaders built the laboratory, assembled the parts, supplied the electricity, and were shocked when the creature began smashing through constitutional walls.
The story begins with a distinction that matters. Arguments about the Constitution’s text, history, and original meaning are not new. Lawyers and judges have long debated what the Framers intended and how much weight history should carry. But modern originalism—the highly organized judicial philosophy now associated with the conservative legal movement—was not the historic constitutional religion of the Republican Party.
It was developed as a modern political and legal project.
The Republican Party of Abraham Lincoln, Theodore Roosevelt, Dwight Eisenhower, and even Richard Nixon was not united behind today’s version of originalism. Eisenhower appointed Earl Warren and William Brennan, two justices who helped define the modern Court’s expansive reading of civil rights and individual liberty. Theodore Roosevelt criticized courts that blocked democratic responses to industrial inequality. Nixon spoke of “strict construction,” but that slogan was not the carefully organized, judge-vetting movement that followed.
The modern originalist revolution took shape in the 1970s and became a governing strategy during the Reagan administration. Attorney General Edwin Meese III announced in a 1985 American Bar Association speech that constitutional law should rest on a “Jurisprudence of Original Intention.” The Reagan Justice Department was not simply joining an academic debate. It was announcing an agenda: use the executive branch, federal courts, legal scholarship, and judicial nominations to redirect the Constitution toward conservative outcomes. (U.S. Department of Justice)
That was the beginning of an institutional project that went far beyond any one election.
The Federalist Society, founded in 1982, helped build the infrastructure: Law-school chapters, professional networks, litigation support, judicial candidates, and a common language of limited government, originalism, and opposition to what conservatives called judicial activism. (Federalist Society) The point was not merely to win arguments. It was to place judges on the bench who could reshape the country for decades.
Donald Trump did not invent that project. He was its most useful vehicle.
McConnell understood this better than almost anyone in Washington. In 2016, after Justice Antonin Scalia died, President Barack Obama nominated Merrick Garland to fill the vacancy. McConnell did not merely oppose Garland. He announced that the Senate would not meet with him, hold hearings, or give him a vote. Senate Judiciary Committee Republicans publicly pledged not to move forward with any Obama nominee. (Politico)
That was a conscious choice to deny a sitting president his constitutional role so that a future Republican president could fill the seat.
Then, in 2020, McConnell’s Senate performed the opposite maneuver. When Justice Ruth Bader Ginsburg died shortly before the election, the Senate rushed Amy Coney Barrett through confirmation. Barrett was confirmed on October 26, 2020, by a 52–48 vote, even though millions of Americans had already cast ballots (U.S. Senate Roll Call Vote No. 224)
The rule was simple: There was no rule. There was only power.
Those two maneuvers, together with Trump’s appointments of Neil Gorsuch and Brett Kavanaugh, helped produce the 6–3 conservative majority that now dominates the Court. The Court’s own biographies identify Trump as the nominating president for Gorsuch, Kavanaugh, and Barrett (Supreme Court of the United States)
On some issues, the Court has delivered precisely what its builders wanted.
In Dobbs v. Jackson Women’s Health Organization, the Court overruled Roe v. Wade and Planned Parenthood v. Casey, declaring that the Constitution does not protect a right to abortion. (Dobbs v. Jackson Women’s Health Organization) This was not an accidental consequence. It was a central objective of the conservative legal and political movement for half a century.
In Loper Bright Enterprises v. Raimondo, the Court overruled the Chevron doctrine, which had generally required courts to defer to reasonable agency interpretations of ambiguous laws. The result is to shift more power from expert agencies to judges, making it harder for government to implement laws Congress itself wrote. (Congressional Research Service)
Again, that was no surprise. Weakening the administrative state has been a conservative objective for decades.
But then came the Frankenstein moment.
In Trump v. United States, the Supreme Court held that a former president has absolute immunity from criminal prosecution for conduct within his core constitutional powers and presumptive immunity for official acts. (Trump v. United States) The majority said unofficial acts remain subject to prosecution. Yet the real-world effect is delay, uncertainty, and a powerful legal shield for a president willing to blur the line between official authority and personal political survival.
That is where the Court’s conservative project becomes something more alarming. A Court designed to restrain government agencies and overturn liberal precedents has also enlarged the room in which a president can evade accountability.
The justices may say they were protecting the presidency, not Trump. But constitutional rules must be judged by how they work when the least restrained person holds office—not when a careful, honorable president does.
Congress deserves no less blame.
For years, too many members of Congress have substituted press releases for oversight and partisan theater for governing. They complain after presidents stretch their authority but refuse to use the powers the Constitution gives them: Appropriations, investigations, subpoenas, legislation, impeachment, and the power to set the structure of the federal judiciary.
Congress is not helpless before the Supreme Court. The Constitution does not say there must be nine justices. Congress has changed the Court’s size before, and proposed legislation has called for increasing the number from nine to thirteen. (Judiciary Act of 2023) That should not be dismissed as heresy. It should be debated seriously.
Court expansion is not a magic wand, nor should it be revenge. It could trigger escalation whenever political power changes hands. But neither should Americans treat nine seats as sacred, lifetime appointments as beyond reform, or an ethics code without enforceable discipline as adequate protection for democracy.
Congress should enact binding ethics, disclosure, and recusal requirements. It should seriously consider term limits. It should restore meaningful oversight of presidential power. And it should openly debate whether a Court captured through procedural hardball deserves to remain structurally untouched.
The Supreme Court Ethics, Recusal, and Transparency Act has proposed stronger ethical standards, financial disclosures, and recusal requirements for justices—basic protections that should not be controversial in a democracy. (Supreme Court Ethics, Recusal, and Transparency Act of 2023)
The most important point is this: McConnell and his allies did not necessarily intend to create a president who sees the law as optional. They intended to create a permanent conservative Court. But they pursued that goal through tactics that weakened constitutional norms, rewarded raw power, and taught future presidents that rules are merely obstacles to be routed around.
They built the laboratory. They assembled the Court. They weakened the guardrails. Trump merely showed them what their creation could do.
The public’s task now is not to admire the monster, excuse its creators, or wait for someone else to save us. It is to elect members of Congress willing to reclaim the powers they surrendered—and willing to put constitutional restraints ahead of partisan victory.
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Phil Huber is a retired Army Reserve colonel, federal civil servant and consultant who writes on civic education. He lives in Fredericksburg.
