A Branch of Government Self-Destructs

The Supreme Court's power depends on its legitimacy. It has given that away.

Dred Scott, subject of the notorious ruling by Chief Justice Roger Taney that current Justice Clarence Thomas quoted approvingly in a ruling this week. (Getty Images)

The Supreme Court has the least-explicitly defined powers of any governmental branch mentioned in the Constitution.

-The Congress is assigned control over taxes, budgets, ratifying treaties, and many other matters—including, as a now-theoretical concept, whether the nation goes to war.

-The president is empowered as commander-in-chief of the nation’s military, among other roles.

But the relatively terse Article III of the Constitution, which establishes the court system, says merely that the Supreme Court has final authority over “the judicial Power of the United States,” and that its members and other federal judges “shall hold their Offices during good Behaviour.” That is, they would have open-ended appointments rather than fixed terms like those for legislators or the executive.

What exactly that judicial Power is, and how it will be enforced, were not spelled out in the founding document, and have evolved through rulings, precedent, and practice through the centuries.

Everyone knows this. The point that bears emphasis—today, on June 24, 2022, the day Roe v. Wade was overturned—is that the Court’s power ultimately depends on legitimacy, and its current majority has piled its legitimacy into a big heap and set it ablaze.

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Two kinds of legitimacy: One eroding slowly, the other quickly.

Any democratic system must, in the long run, match the general will of the people with the general actions of the state. That’s how you know it is a democracy. And the qualifiers in that first sentence matter:

• In the long run, rather than minute by minute, because the U.S. wasn’t designed to put issues up for instant plebiscite (these days, a Twitter poll). Nor, in contrast to most modern democracies, is it based on the parliamentary model, which automatically links executive and legislative power, and which can switch the party in power within a matter of days.

• The general will of the public, rather than any one group’s ideal agenda. It’s a big, fractious country, which has always had to balance the wishes of a majority with the rights of its minorities.

• The general actions of the state, because they’ll be contradictory and based on messy compromise, and will evolve over time.

Faith in the long-run model, and the ups and downs of a shaggy democracy, is what every president but one has expressed in his inaugural address.¹ It’s what Martin Luther King meant in saying “the arc of history is long.” It has been why almost all losing candidates and parties, after the sting of defeat, have resolved to buckle down, retool, and do better next time.

But institutionally the long run / general will / general actions assumption has come under 21st-century strain. To summarize (as laid out in more detail here):

• Imbalance in the Senate. As I’ve mentioned countless times, when the very practical-minded idealists who worked out Constitutional compromises agreed on two Senators per state, the population gap between biggest and smallest state was about 10 to one. Now it’s nearly 70 to one, with resulting challenges for long-run majority rule that are obvious.
  Pragmatists like Hamilton, Madison, and Adams would never have come up with the two-per-state bargain, if their demographics had been like ours.

• Abuse of the filibuster. It didn’t exist when the country was founded. It was a rarely used “going nuclear” option, mainly to block civil rights legislation, through most of the 20th century. Now it has become routine, weaponized, and nihilistically destructive. Read Adam Jentleson’s book.

• Sudden relevance of the Electoral College.. Everyone knows that the Electoral College is in the Constitution. But absolutely no one who was of voting age as of November 7, 2000—date of the Bush-v-Gore election—had ever seen the Electoral College make any difference. The most recent time it had was in 1888, long before even my grandparents were born.
  Now the Electoral College is how the only two Republican presidents of the 21st century have taken office. Now it’s why Democratic candidates have won the nationwide vote in seven of the past eight presidential elections, but have represented only three of the five presidencies in that time.²
  Yes, the Electoral College has always been there. But through the entire 20th century, it had not ever made a difference. It was a curlicue, not a reality. I speak as someone who worked on a (winning) presidential campaign.

• Spillover imbalance for the Supreme Court. Because of the Electoral College, and because of the vagaries of fate, and because of the will of Mitch McConnell, and because of the well-timed resignation of Anthony Kennedy and the poorly timed decisions of Ruth Bader Ginsburg, and for other reasons, six of the nine members of the current Court were appointed by the party that lost seven of the eight past national presidential votes.
  To put it a different way: the party that has won the support of most Americans for more than a generation, holds just three seats on a Court that now openly acts as just another branch of the House of Representatives, but with life tenure and higher self-regard.
  The most recent Democratic president to appoint a Chief Justice was Harry Truman, in 1946.

Everyone knows this. The point in summing it up is to say: democratic legitimacy depends in the long run on majority rule, combined with minority rights.

We’re now closer to systematic rule by a minority, rather than respect for its rights. A democracy cannot forever function this way.

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The special case of the Supreme Court

Gallup Polls.

The Supreme Court has a long up-and-down history of glory and of tawdriness. But I argue that the leaders and eras that stand up best in retrospect showed awareness that the Court’s power depended on legitimacy, and legitimacy depended on the Court’s care about how it fit into the longer-term life of a democracy.

Consider what might seem the strongest counter-example: the Court’s rulings from the 1950s through the early 1970s, from Brown v. Board of Education to Roe v. Wade. Those were under Chief Justices Earl Warren and Warren Burger—both Republican appointees, and Earl Warren a former Republican governor and GOP vice-presidential nominee.

Contrast these with what the current Alito / Thomas court has done, which we’ll get to in a minute:

—Brown was of course a seminal desegregation ruling. It was unpopular enough in parts of the South to lead to famed showdowns between federal and state authority. But polls at the time showed that it and related civil rights rulings enjoyed strong (60%) support across the nation as a whole. The Court’s ruling in this case was unanimous.

—Baker v. Carr was the beginning of “one person, one vote” anti-gerrymandering rulings. I have not found any polling data about it, from the early 1960s. But the general idea of equalizing voting rights was mainstream enough that the reauthorization of the different-but-related Voting Rights Act in 2006 passed the U.S. Senate on a unanimous voice vote. This is the Act that the Supreme Court largely dismantled, in an opinion by John Roberts himself, in the notorious Shelby County ruling, for which he will always be known.

—The Roe v. Wade decision, overruled today, was written by a Republican appointee, Harry Blackmun. Its 7-2 majority included 5 Republican appointees to the Court. It has always been controversial, and it deals with a deeply divisive moral issue. But through the decades polls have shown that a clear majority of Americans oppose overturning it. Which the Court did today.

The Supreme Court is not supposed to follow the opinion polls. But what the previous Courts did in these and other cases happened to be aligned with what a majority, in a democracy, wanted done. Over the long term, its general actions matched the general will of the public.

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Activism, on shaky ground

Today’s Court has reason to err on the side of caution:

—It is, or should be, aware of its “un-representative” nature. All but one of its nine members (Barrett) graduated from either Harvard or Yale law schools. Two-thirds of current Justices are Catholic, and one more was raised Catholic (vs. about one-quarter for the country as a whole). Background imbalances apply at many elite institutions. But most are more accountable and transparent than the Court.

—It is, or should be, aware of its role in the cross-hairs of this moment’s politics. Neil Gorsuch has the seat that Mitch McConnell and his bloc denied to Merrick Garland. Amy Coney Barrett’s nomination was rammed through by McConnell just before the 2020 election. (And she later gave a speech, decrying the idea that the Court could be seen as politicized—at the Mitch McConnell Center at the University of Louisville.) Bret Kavanaugh …. has reason to de-politicize his reputation.

—It is, or should be, aware of the perils to its own standing, from enlisting head-on in the culture wars.

But that is what it has done. It has overruled states’ ability to pass gun-safety laws, despite very strong public sentiment in the other direction. It has begun limiting Miranda warnings. It is weakening states’ ability to set environmental standards. And today it has outright overturned a ruling that strong majorities support, and that many of its members said was “settled law” when offering themselves for confirmation.

The Court has been maximally intrusive, at a time when:

• It has one member, Clarence Thomas, whose wife is credibly accused of having abetted the January 6 plot to overturn an election—even as he is ruling on related cases.

• It has three members (Roberts, Kavanaugh, and Barrett) who were part of the 2000 Florida recount team for George W. Bush.

• Depending on how you count, it has between three and six members who, ummm, “dissembled” in their confirmation hearings in their views about Roe v. Wade. Clarence Thomas said he had not thought about it, which is plainly false. The others, in varying degrees, said that they considered it “settled law.” Which they have now all voted to overturn.

None of these, except the first and maybe the third, is disqualifying. But they all mean that a court concerned about legitimacy, would under- rather than over-intrude in public affairs.

Over-intrusion is what we have. In the anti-Miranda ruling. In the blocking of gun control. In the outright voiding of Roe v. Wade.

The Court can make its rulings. From behind its barricaded and no-guns-allowed building.

It cannot preserve its legitimacy this way.

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What is to be done?

The Court depends on legitimacy. The current majority, Boss Tweed-style, has decided that if it has the votes, it doesn’t care.

My agenda:

1. It is time for fixed terms for the Supreme Court. This report, from the incomparably august American Academy of Arts and Sciences, explains how it could work, and why it is wholly constitutional.

2. It is time to expand the Court. After Clarence Thomas’s and Samuel Alito’s motivated-reasoning dives into history, no one can ever again claim with a straight face that this would “politicize” the judiciary.

3. It is time to vote, and expand and defend the right to vote.

1. For instance, Ronald Reagan’s first words on being sworn in: “The orderly transfer of authority as called for in the Constitution routinely takes place, as it has for almost two centuries, and few of us stop to think how unique we really are. In the eyes of many in the world, this every-4-year ceremony we accept as normal is nothing less than a miracle.”

Faith in the long term justice of the system was also what Al Gore paid homage to, in his unbelievably stoic speech after the Supreme Court stepped in to stop the Florida recount and essentially declare George W. Bush president in 2000:

“Almost a century and a half ago, Sen. Stephen Douglas told Abraham Lincoln, who had just defeated him for the presidency, "Partisan feeling must yield to patriotism. I'm with you, Mr. President, and God bless you." Well, in that same spirit, I say to President-elect Bush that what remains of partisan rancor must now be put aside, and may God bless his stewardship of this country.”

2. To spell it out: Democratic candidates won the national vote in 1992 and 1996 (Bill Clinton); 2000 (Al Gore); 2008 and 2012 (Barack Obama); 2016 (Hillary Clinton); and 2020 (Joe Biden). The Republican candidate won the national vote in 2004 (George W. Bush).