On the Supreme Court and Institutional Legitimacy
In this article that you’re reading now, I’m going to be making an argument that some might see as partisan in nature. It isn’t, or at least, it shouldn’t be. I’m arguing here in support of our national institutions, not in support of either party. We’ve arrived at a crossroads in our history with special regard to one of those institutions. In case you couldn’t tell, it’s the Supreme Court. Let me explain a little bit more thoroughly.
For the past several decades, the Supreme Court has been difficult to place in traditional partisan boxes. There are a couple reasons why this has been the case. First of all, judges do not always arrive at legal decisions in ways that consistently benefit the policy goals of one party over the other. John Roberts, nominated by George W. Bush, authored a decision that preserved most of Obamacare. Neil Gorsuch, nominated by Donald Trump, penned a majority opinion earlier this year that nationalized workplace protections for members of the LGBTQ community. Anthony Kennedy, appointed by Ronald Reagan, authored the Court opinion declaring restrictions on same-sex marriage unconstitutional.
The second, more important reason that the Supreme Court has been so difficult to categorize is that nominations have been very even over the past few decades. Since 1991, nine justices have joined the court. Five (Chief Justice Roberts, and Justices Thomas, Alito, Gorsuch, and Kavanaugh) have been nominated by Republicans. Likewise, four justices (Breyer, Sotomayor, Kagan, and the newly-passed Ginsberg) were nominated by Democrats.
This delicate balance of decisions and partisan appointments to the Court has kept it from becoming too slanted towards any one party and ideology in the eyes of the American public. This has been a good thing for our judicial system and our country. The unique concept of judicial review can be a useful tool for tempering the worse instincts of the legislative and executive branches, but it becomes useless if the Supreme Court can’t be seen as an impartial judge of our Constitution and our laws. I am here to tell you that the fastest, most sure-fire way to put an end to that perception of the Supreme Court among a giant swath of the American populace is for Donald Trump and Republicans to narrowly confirm a conservative justice less than a month before a general election.
I’m not making an argument about whether or not people should react this way. I’m telling you that they are.
What does this mean? What happens if the Supreme Court loses its legitimacy in the eyes of those left of our political center? Well, an increasing possibility is that Democrats will expand the size of the Court the next time they control both Congress and the White House. Since the Constitution doesn’t spell out how many justices need to comprise the Supreme Court, a simple majority in both houses of Congress can send a bill to the White House changing the number of justices. Both parties have been loathe to consider this option for centuries since it would completely wreck the Court’s legitimacy and its ability to effectively wield judicial power. In a situation where Democrats have already lost any respect for the institution of the Supreme Court, this will no longer be an obstacle. After the court has been expanded, decades of political maneuvering will follow, as both parties continue to expand the court every time they gain control of both Congress and the White House. Sooner or later, politicians and agencies will start ignoring Supreme Court decisions, and we’ll have to have a discussion (or more realistically, a fight) over what to replace it with or whether to replace it at all. The Supreme Court, as an institution, will be dead.
Some might find this vision of the future overly-dramatic. After all, we’ve had 6-3 compositions of the Court before and nothing quite so serious has happened. I tell you this time is different. Polling done just in the past few days, before a national discussion on the topic of court packing, finds 40% of Americans already support the Democrats expanding the Court if Republicans appoint a Justice and Joe Biden wins, and another 21% are undecided. A good deal of those undecideds are going to move into the “Support” column. Over the past two decades, we as a nation have descended into an atmosphere of political vitriol and hyper-polarization that hasn’t been seen in 150 years. I don’t think we can sustain this serious of a blow to our confidence in our political institutions.
There is an easy solution to avoid this pain. Let the winner of November’s election nominate Ruth Bader Ginsberg’s successor.










