The Weekly Sift

On September 10, the New York Post ran the headline “Chief Justice John Roberts defends Supreme Court legitimacy“. His speech the previous evening at a conference of judges in Colorado inspired discussions on several news networks around the question: Is the current Supreme Court legitimate?

I was reminded of this passage from the 1948 political novel All the King’s Men.

It was one of those embarrassing questions like “Do you think my wife is virtuous?” or “Did you know I am a Jew?” which are embarrassing, not because of anything you might say for an answer, the truth or a lie, but because the fellow asked the question at all.

The problem isn’t so much how anyone might answer the question of the Court’s legitimacy, but that we have to answer it at all. It didn’t used to be up for debate; but now it is. The Court has done that to itself.

Polls show the Court’s approval rating at record lows. Court-packing — expanding the Court [1] so that new justices can be appointed — had been off the table politically since FDR tried it in the 1930s. But in a Marquette Law School poll taken earlier this month, 18% strongly favored increasing the number of justices, and 33% somewhat favored it, adding up to a slim majority. With some demographic groups, court-packing was fairly popular:

Expanding the court was favored by larger majorities of a number of groups: 63% of Black respondents, 61% of Hispanic respondents, 60+% of those ages 18-44, 60% of women and 56% of those making less than $30,000 per year.

These kinds of numbers matter, not because Congress is likely to take up a court-packing proposal, much less pass one, but because the whole idea constitutes a blasphemy against the mythology of the Court. The Supreme Court is supposed to be a kind of priesthood, whose lifetime appointments remove them from the hurly-burly of worldly concerns. In his confirmation hearing in 2005, Roberts waxed idealistic:

Mr. Chairman, I come before the committee with no agenda.

I have no platform.

Judges are not politicians who can promise to do certain things in exchange for votes.

I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

So what’s Roberts’ defense of the Court now?

Simply because people disagree with opinions, is not a basis for questioning the legitimacy of the court

But the problem isn’t just that the Court’s reversal of Roe — or its rulings on guns or voting rights or campaign finance or the separation of church and state — aren’t popular. The Court’s legitimacy problem runs much deeper.

The law changed not because anything changed in the world, but because new justices joined the Court.

It’s not unheard of for the Supreme Court to reverse a precedent that has stood for many years. Plessy v Ferguson, for example, established the separate-but-equal principle in 1896, and was reversed by Brown v Board of Education in 1954. But the contrast between the Brown and Dobbs reversals is striking.

The Brown reversal was unanimous, not a 5-4 decision where the three most recently appointed justices made the difference. The arguments in Brown represented a change in tactics from those in Plessy. And the world had changed around Plessy: The Brown decision cited recent psychological research on the effects of segregation on Black children; the federal government submitted a brief about how racial discrimination was hurting the United States in the Cold War competition in Africa and Asia; Black soldiers had fought for the US in two world wars; and the supposed inferiority of Black people had been challenged in sports by athletes like Jesse Owens, Joe Louis, and Jackie Robinson.

But what created the Dobbs decision was the appointment of new justices. Donald Trump had run on the promise that his judicial nominations would be “all picked by the Federalist Society“, which opposed abortion rights. He fulfilled that promise: He made three appointments, all of whom voted to overturn Roe.

Squaring that record with Roberts’ confirmation-hearing idealism requires a lot of unconvincing verbal gymnastics: True, Gorsuch, Kavanaugh, and Barrett didn’t get votes in the Senate by promising to overturn Roe. (Quite the opposite, they secured the final votes they needed by promising to respect precedent, which they did not do.) The political process was more roundabout: Trump promised to let the Federalist Society pick his judges, and Gorsuch, Kavanaugh, and Barrett sent the Federalist Society sufficient signals to convince them that they would overturn Roe.

So yes, they are politicians who got their positions by (indirectly) promising to do certain things. They were put on the Court to pitch and bat, not to call balls and strikes. That fact was widely known, and anti-abortion legislatures intentionally teed up laws that would allow the new justices to overturn Roe.

The Court’s conservative majority is due to political shenanigans in the Senate.

When Justice Scalia died, President Obama nominated Merrick Garland to replace him. Garland had a spotless record that left Republican senators no excuse to vote against him. So instead Majority Leader Mitch McConnell just refused to recognize that Garland had been nominated at all, ignoring the Constitutional directive to advise and consent on nominations, giving the excuse that the Garland nomination was too close to the 2016 election. That argument went out the window, though, when Ruth Bader Ginsburg died, and Barrett’s nomination was raced through the Senate so that she could be seated in time for any 2020 election controversies.

The exchange below is instructive: Al Franken says the Garland/Barrett hypocrisy “destroyed the legitimacy of the Court”. Republican Alice Stewart argues that the Garland maneuver is what happens “historically” when the Senate is controlled by a different party than the White House. And Franken refuses to let that lie pass: “When has it ever happened before?” he demands, and won’t stop asking the question, because Stewart can’t answer. It had never happened before.

The Court’s conservative majority is the result of minority rule.

The Founders strongly believed in the sovereignty of the People, but they left two major loopholes in the Constitution that have opened the door to minority rule: the Electoral College and the Senate. The Court’s current majority could not exist without both of them.

Trump’s three justices would never have been appointed if the Electoral College in 2016 had not reversed the decision of the voters: Hillary Clinton beat Trump nationally by nearly three million votes. [2] Worse, Mitch McConnell’s Senate majority did not represent a majority of the American people.

For the last thirty years, Republican Senate majorities have relied not on the support of a majority of American voters, but on using small-state victories to overcome large-state defeats. Since 1990, there has been only one six-year election cycle (i.e., the period during which all Senate seats come up for election) when Republican Senate candidates got more votes than their Democratic opponents. It hasn’t happened since the 1994/1996/1998 cycle. [3]

In other words, if the Senate represented the American people, Mitch McConnell would never have been majority leader.

Under a majority-rule constitution, a Democratic-majority Senate would have seated Merrick Garland, Hillary Clinton would have nominated Ruth Bader Ginsburg’s replacement to a Democratic-majority Senate, and Justice Kennedy would be hoping to live long enough to see a Republican president. Liberals would have a 5-4 majority, counting the sometimes-liberal Kennedy as part of the conservative 4.

The Court actively participates in a minority-rule vicious cycle.

It would be one thing if happenstance (such as who dies when) had created the conservative Court majority, and that Court went on to make impartial principled rulings about elections.

But conservative justices on the Court have been actively promoting the minority rule that installed them. Justice Roberts, for example, wrote the 5-4 opinion that gutted the Voting Rights Act, and has continued to chip away at what remains of it. [4]

That opinion has allowed Republicans to pass voter suppression laws in swing states like Georgia and Wisconsin, which might well decide which party controls the Senate next year. Roberts’ ruling could make the difference that puts Mitch McConnell back into a position where he could block a Biden nominee if some member of the Court’s conservative majority should happen to die or retire unexpectedly.

It’s a vicious cycle: A Court approved by minority rule extends minority rule.

The Roberts Court has put its thumb on the electoral scales in a variety of other ways, consistently favoring Republicans. It has refused to ban gerrymandering, arguing the absurd point that the voters should take action against the very gerrymandering that makes their votes irrelevant. It has opened the spigots of corporate campaign donations and dark money, which overwhelmingly flows to conservative candidates.

Again, we can see the results: Democrats currently lead in the generic congressional ballot polls by an average of 1.3%. And yet Republicans are favored to control the House. Why? Because Democrats have to win by 3-5% to gain a majority of seats.

Compare two recent “wave” elections. In 2018, 53.4% of voters supported Democratic House candidates, compared to 44.8% who supported Republicans. Those votes gave Democrats a 235-199 majority.

In 2010, 51.7% voted for Republican House candidates compared to 44.9% for Democrats. The resulting Republican majority? 242-193.

Fewer Republican votes yield more Republican seats. That’s a problem for people who believe in democracy, but not for the Roberts Court. The more Republican seats, the better.

It could soon get worse. The Court has decided to hear Moore v Harper, a case which raises the once-absurd “independent state legislature” doctrine. Under this theory, rules for federal elections are set by state legislatures, and no one can overrule them: governors can’t veto and state supreme courts can’t find that they violated the state constitution.

When you consider that some state legislatures are so gerrymandered that they aren’t really democratic institutions any more [5], giving them total control of federal elections is a recipe for permanent minority rule.

The Court has an ethics problem.

The only ethics code that applies to the justices is the vague “good behavior” standard in the Constitution. Each justice makes his own decisions about conflicts of interest and whether to recuse from a case. The current justices are abusing that lack of standards.

The most egregious recent case is Clarence Thomas, who rules on cases where his wife has an interest.

But also, a federal panel in 2018 dismissed 83 ethics complaints against Brett Kavanaugh, not because they weren’t serious, but because “there is no existing authority that allows lower court judges to investigate or discipline Supreme Court justices.” And we have since discovered that the FBI investigation into Christine Blasey Ford’s sexual assault accusation against Kavanaugh was rigged to find nothing.

Unpopularity is just the beginning.

Any judge has to be ready to bear the heat of making an unpopular decision, if that’s what the rule of law requires. But when changes on the Court immediately lead to changes in the meaning of the laws, the public is right to be suspicious.

And when those changes on the law are based on a minority’s ability to change the Court without ever changing the minds of the electorate, that’s a problem. Vox’ Ian Millhiser sums that problem up:

The Dobbs decision is the culmination of a decades-long effort by Republicans to capture the Supreme Court and use it, not just to undercut abortion rights but also to implement an unpopular agenda they cannot implement through the democratic process.

Worse, the Court is abusing its power to change the democratic process itself, and so is rewarding the party that installed it.

That — and not a few unpopular decisions — is the source of the Court’s legitimacy problem.

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[1] Many people think the number of justices is set in the Constitution, but it isn’t. Article III says simply:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

leaving the details of the Court totally up to Congress. The actual number of justices has changed many times. The original court had six justices. The nine-justice court was established in 1869, and has stayed at nine ever since.

The objection to court-packing is obvious: It sets up the possibility of a tit-for-tat cycle, where new justices are approved whenever a new party takes power. But accepting that argument leaves a question unanswered: The Court has already been packed. What should be done about that?

[2] Some people add Justice Alito to this total, because he was appointed by George W. Bush, who lost the popular vote to Al Gore in 2000. However, Bush nominated Alito during his second term, after winning the popular vote in 2004. You can argue that if Gore had been elected in 2000, Bush couldn’t have been re-elected in 2004. But that argument takes us a little too far down the alternate-history rabbit hole. Gore might have lost his re-election bid in 2004, and the Republican who beat him might have appointed someone like Alito.

[3] The Senate that confirmed Amy Coney Barrett in 2020 is a good example. During the 2014/2016/2018 election cycle (when the senators serving in 2020 were elected), Democratic Senate candidates got 50.3% of the votes compared to the Republicans’ 43.3%. But that minority of votes netted the Republicans a 53-47 majority.

[4] It’s impossible to read Roberts’ 2013 Voting Rights Act decision as a legal argument; it’s a political argument, pure and simple. Here’s my summary at the time:

The VRA was vaguely justified in 1965 and is vaguely unjustified now, because “things have changed”. If I were a congressman, I would have no idea how to revise the VRA so that it passes constitutional muster. If Congress does revise it, lower court judges who rule on it will just be guessing about its constitutionality. It will have to go back to the Supreme Court before anyone knows whether it’s really a law again, because there are no standards in Roberts’ opinion by which a revision can be judged.

[5] According to a report by the Schwartzenegger Institute:

59 million Americans live under minority rule in their U.S. state legislatures following the 2018 elections. Minority rule is defined as the party with the minority of votes in the most recent election nevertheless controlling the majority of seats in the state legislature subsequent to that election. Six U.S. state legislatures were drawn by legislatures or partisan-leaning committees that resulted in minority rule following the 2018 elections. These states are Michigan, North Carolina, Ohio, Pennsylvania, Virginia, and Wisconsin

Note that all six of those states were Republican legislatures ruling over a Democratic electorate.