On the Coming Illegitimacy of the Supreme Court

(as distributed by Project Syndicate and published at The Nation.com Sept 17, 2018, slightly revised. Photo: Reuters / Joshua Roberts)

This month’s US Senate Judiciary Committee hearings to consider the nomination of Brett Kavanaugh to a seat on the Supreme Court marks the culmination of a decades-long campaign by the right-wing Federalist Society to reshape the judiciary. For those devout conservatives and their moneyed backers, faced with the prospect of massive demographic and generational shifts in the country’s body politic, the strategy has long been to find a way to limit severely access to authentic democratic governance in the United States for generations to come. They now seem on the verge of achieving their goal.

The complex interplay between the three branches of the US federal government—the executive, the legislative, and the judicial—is at the heart of American democracy’s system of checks and balances. But now the highest level of the judiciary is in imminent danger of losing the legitimacy that ultimately is the sole basis of its authority. With the coming addition of Kavanaugh to the bench, the American people will need to ask themselves if the Court can still be trusted properly to exercise its lawfully derived powers.

The very word “legitimacy” has etymological roots going back to the concept of lawfulness, from the Latin legitimus. But over the years, it has also become entwined with the related concept of proper (or improper) origins, as in the legitimacy of one’s birth.

Historically, that fraught question could determine whether one had the right to inherit property, titles of nobility, and the like. Throughout medieval times, only those born into lawfully constituted and recognized unions were so entitled; otherwise, they were considered “bastards” or “misbegotten,” a word that still regularly shows up as a synonym for “illegitimate.” Entire wars have been fought over lesser distinctions.

As it happens, “misbegotten” may be the most appropriate term available to describe today’s Supreme Court. After all, since 1988, Republican presidential candidates have won the popular vote in presidential elections—the only consistent measure of national voter intent—just once, when George W. Bush was reelected in 2004 after a period of national unification following the September 11, 2001, terrorist attacks. In every other presidential election (1992, 1996, 2000, 2008, 2012, and 2016), the Democratic candidate won more votes than the Republican candidate. And now, still another minority-elected Republican president stands on the verge of consolidating a five-vote hard-right majority on the nine-member Court. If the last judicial term was anything to go by, that majority will hold positions well to the right of the rest of the country on most nationally polled issues.

How did the Republicans manage this? Arguably, it all started the year before the 1992 election, when then-President George H.W. Bush (who, in fairness, actually had won a popular-vote majority in 1988) nominated Clarence Thomas to replace outgoing Justice Thurgood Marshall. In the years since, considerable evidence has accumulated that Thomas acceded to that seat by committing perjury during his Senate confirmation hearings.

Nine years later, Thomas would go on to join the five-to-four majority in Bush v. Gore, in which the Court ruled that Florida’s 2000 election recount had to stop. In doing so, he helped hand the presidency to the son of the man who had appointed him, and denied it to Al Gore, who had won the national popular ballot by more than 500,000 votes. So obtuse was the majority’s written opinion in that case that the ruling actually came with a remarkable disclaimer that it should never be cited as precedent in the future.

As a result, Bush took office in 2001 as a president of only dubious legitimacy. But that did not stop him from replacing two relatively centrist, independent-minded justices with jurists further to the right. In 2005, he appointed the current chief justice, John Roberts, to replace William Rehnquist; and in 2006 he appointed Samuel Alito to replace Sandra Day O’Connor.

Ten years after Alito’s confirmation to the Court, President Barack Obama was afforded the opportunity to nominate a replacement for Antonin Scalia, who also joined the Bush v. Gore majority, after Scalia died suddenly in his sleep in February 2016. At the time, the Republicans held a slim majority in the Senate, and Obama bent over backward to assuage them, nominating Merrick Garland, the moderate Chief Judge of the US Court of Appeals for the District of Columbia Circuit.

Though Obama would remain in office for nearly another year, his nominee to the Court never received a hearing, let alone a confirmation vote. Through unprecedented procedural delays, the Republican Senate majority leader, Mitch McConnell, succeeded in stymying the president’s constitutional authority to appoint Supreme Court justices with the “advice and consent” of the Senate.

It bears mentioning that, at this time, the 54 Republicans in the Senate had collectively received 20 million fewer votes than their 46 Democratic colleagues. The Republicans owed their majority strictly to the Senate’s antidemocratic composition, whereby each state is represented by two senators, regardless of population. This scheme was one of many concessions made to slave states during the drafting of the Constitution, and with the rise of urbanization, it has come to have an increasingly distortionary effect on American politics. For example, Wyoming’s two senators represent 563,767 people (according to the 2010 census), whereas California’s senators represent 37,254,518.

The same can be said for the Electoral College, which allowed Donald Trump to claim victory in the 2016 presidential election, despite his having received 3 million fewer votes than his opponent, Hillary Clinton. One-quarter of all past US presidents have assumed office with a smaller percentage margin of the popular vote than Clinton received. Moreover, Clinton achieved her high popular-vote margin despite widespread voter-disenfranchisement campaigns aimed at Democratic-leaning voters in states controlled by Republicans. To give just one example: In Florida, where elections are regularly notoriously close, more than 1.5 million citizens (over 10 percent of the state’s total number of adults, and one in five African Americans males) are denied the vote owing to nonviolent criminal convictions, even after they have served their time in prison. Then there was the election interference conducted by the Russian government on Trump’s behalf.

Despite having no democratic mandate to speak of, Trump and the Senate Republicans wasted no time in confirming Neil Gorsuch to Garland’s rightful seat on the Court. Between the kabuki theater of Gorsuch’s confirmation hearing and the circumstances that allowed for his nomination in the first place, his tenure on the Court will always have an asterisk next to it. For as long as he presides, Gorsuch’s will need to be considered a “bastard” vote in all future 5-4 decisions.

That brings us to today. Though there is less controversy around the vacant seat that Kavanaugh has been nominated to fill, the legitimacy of his nomination is every bit as dubious as that of Gorsuch.

Kavanaugh was selected by a president who has been implicated in a felony allegedly committed in pursuit of the office he now holds. That alone calls into question Trump’s legitimacy. But he is also the subject of an unprecedented investigation into his campaign’s possible collusion with a hostile foreign power—an investigation that has already resulted in more than 20 guilty pleas or felony convictions.

Kavanaugh, a member of the legal team that persuaded the Supreme Court to hand Bush the presidency in 2000 (thereby hastening the whole grim cavalcade of misbegotten) was most likely selected for his conspicuous support of executive authority in the past. His interpretation of the president’s powers seems to brook no limits, and would likely open the door for Trump to ignore a grand-jury subpoena and even shut down the investigation of his campaign.

With his party still enjoying a two-vote (minority-elected) majority in the Senate, McConnell has shown no compunction about ramming Kavanaugh’s dubious nomination through that body. That leaves no alternative but to consider the dire implications of a Supreme Court dominated by the Misbegotten Majority: Thomas, Roberts, Alito, Gorsuch, Kavanaugh. What will this judicial coup mean for reproductive, criminal, labor, and civil rights? Is this the beginning of the end of affirmative action and legal abortion?

More to the point, one of the main threats posed by the new Court is what it will do to voting rights and the laws governing elections—that is, the democratic process itself. Decisions that bear on the outcomes of elections could very well upend the functioning of the other two branches of government, thereby blocking all other possible avenues of redress available within the Constitution’s wider system of checks and balances.

Of course, this has been the Republicans’ idea all along. For decades, the Federalist Society, which has overseen all of Trump’s judicial nominations, has understood that cultural and demographic trends are poised to strip the power of its wealthy, predominantly white male sponsors. That cohort is in the process of dying out, and the majority of future voters—and, indeed, current voters, judging by recent popular-vote counts—will be younger, more diverse, more tolerant, and considerably further to the left on economic matters.

To forestall this outcome of democracy, conservatives’ first instinct was to limit the franchise itself. The broad demographic and generational changes underway could be nullified by denying key constituencies the right to vote. And when that wasn’t possible, the next-best option was to tamper with electoral outcomes by means of untraceable “dark money” and gerrymandering. The result is that Austin, Texas, one of the most liberal cities in America, is represented in the House of Representatives by four Republicans and just one Democrat; and North Carolina, a state that is evenly divided between Republican and Democratic voters, is represented by 10 Republicans and just three Democrats.

The only thing standing in the way of this dilution of representativeness had been the slender reed of Justice Anthony Kennedy, whose retirement in June opened the seat for Kavanaugh. That is not to say that Kennedy has acquitted himself well. He sided with the 5-4 majority in both Bush v. Goreand the disastrous Citizens United decision, which demolished limits on the role of money in elections. He was also on board for the decimation of the 1965 Voting Rights Act, which for a half-century had prevented blatant racial discrimination in districts with documented histories of disenfranchising African Americans and members of other minority groups. And he routinely passed the buck on gerrymandering cases.

In the years to come, the Supreme Court’s Misbegotten Majority can be expected to churn out such corrosive decisions with abandon. Citing so-called states’ rights, the Court might start by overturning a recent 3-0 federal-circuit-court decision ordering North Carolina to redraw its egregiously gerrymandered congressional districts. With that precedent in place, other states will be able to step up their own voter-suppression efforts across the board.

For example, some states might decide to deny college students the right to cast absentee ballots, or to vote in jurisdictions where they have not established a permanent residency (or both). Others may think to impose property requirements for voter eligibility, or to “save costs” by shutting down polling stations in, say, Latino neighborhoods. Still others might require non-drivers to show another form of state-issued identification, which can be acquired only at some remotely located administrative office.

These are all very clever ideas, to be sure. They will almost certainly be struck down on constitutional grounds by any lower federal courts that Trump and McConnell have not yet managed to pack with Federalist Society favorites. But such cases will just as certainly be appealed up to the Supreme Court, because the originators of these disenfranchisement schemes now know that can expect receive a sympathetic hearing from the Misbegotten Majority.

If all of this comes to pass, will the United States still be a democracy? In the short term, much will depend on the next two election cycles. The Democrats may well retake control of the House of Representatives this November. But that isn’t guaranteed. In 2016, when Republican congressional candidates received fewer than 2 million (just over 1 percent) more votes than their Democratic counterparts nationwide, a fair electoral map would have given them a five-seat margin over the Democrats in the 435-seat House. But, owing to gerrymandering and voter suppression, they ended up with a 47-seat majority.

The Democrats’ odds of reclaiming the Senate are even lower. One-third of the 100-member Senate is elected to a six-year term every two years, and this coming November, as it happens, Democrats will be defending 24 seats, including in 10 states that Trump won in 2016, while Republicans need to defend only nine. (The situation will be reversed in 2020, when the Republicans will have to defend 21 of the 51 seats they currently hold, along with the presidency.)

But any predictions one makes now may well be upended in the next two years, depending on how aggressively the Misbegotten Majority attacks electoral norms. At any rate, even retaking the House in 2018 won’t do the Democrats much good as far as the Court is concerned. All of the constitutional checks on the judiciary rest with the Senate.

Beyond Congress, many are hoping that Chief Justice Roberts might replace Kennedy as the new swing vote, implying that he will break with the Court’s other conservatives on their more extreme decisions. Roberts has often expressed a desire to maintain the Court’s reputation as a neutral, nonpartisan interpreter of the law, as he did in siding with the liberal majority in upholding the 2010 Affordable Care Act. But when it comes to voting rights, gerrymandering, and other election-related cases, he has been one of the justices leading the charge from the right.

Moreover, even if Roberts did respond to his new circumstances by moderating his positions, what happens if Trump and McConnell get a chance to install another factotum in place of one of the Court’s aging liberals? Whereas Democratic presidents have based their appointments to the Court on merit, Republicans have made a point of selecting younger jurists who will remain on the bench for decades.

In any event, even if the Democrats win the presidency and both chambers of Congress in 2020, their Court problems will have only just begun. Whatever legislative agenda they pursue, they can rest assured that the Misbegotten Majority will strike down fresh measures protecting minorities, workers, and immigrants, as well as any restrictions on campaign finance or corporate behavior. All of this will be justified on the grounds of “originalism”—the Federalist Society/Scalia doctrine of sticking to the strict letter of the Constitution as intended (according to them) by its authors at the time of its promulgation. Never mind that in 1787, only propertied men took part in the Constitutional Convention, and that a sizeable plurality were slaveholders zealously guarding their right to treat people like chattel.

Given current trends on the Court, if individual states try to enact progressive policies on their own, they should be prepared for the Misbegotten Majority suddenly to suspend its much-vaunted devotion to “states’ rights” and strike those down, too. After all, that is the job their sponsors put them there to do. They will not soon forget that they are part of a decades-long project of minority rule.

So, what, if anything, is to be done?

Obviously, the blunt fact of mortality will change the composition of the Court over time. But, again, the Misbegotten Majority comprises some of the more youthful members of the bench. And even if its oldest member, Thomas, leaves within the next two years, Trump and McConnell—or Vice President Mike Pence, if it comes to that—will probably be able to replace him by forcing through another misbegotten right-wing extremist.

After 2020, more avenues for the proper functioning of checks and balances could open up, especially if the Democrats win the White House and the Senate. Frustrated by their democratically legitimate legislation’s being scuttled by a misbegotten Court, they could see fit to draft articles of impeachment against Thomas. The journalists Jane Mayer and Jill Abramson have marshaled clear evidence that Thomas lied under oath throughout his confirmation hearing on matters pertaining to his past behavior toward female co-workers and subordinates. And Kavanaugh himself, if he even makes it through it, may be facing similar jeopardy with regard to multiple possible perjuries in his own confirmation processes.

Alternatively, Democrats could pick up where former President Franklin D. Roosevelt left off, by trying to expand the size of the Court, which can be achieved through legislation. But, given the squishiness of swing-state Democrats, a Court-packing gambit could fail, as it did with Roosevelt; or, even worse, it could backfire by setting a dangerous precedent for Republicans to follow when they return to power.

Looking beyond the next few election cycles, however, the fate of American democracy will rest not just with political institutions but also with the wider public, which may need to reclaim the mantle of mass democratic activism. As Paul Krugman of The New York Times recently noted, the United States is “sitting on a knife edge,” and only an engaged citizenry can prevent it from falling in the wrong direction. America would hardly be the first democracy in history to succumb to plutocratic autocracy verging on fascism.

Fortunately, the United States has a rich tradition of nonviolent activism on which to draw. During the 1950s and 1960s, African Americans set a heroic example by demanding and winning civil rights. A half-century before that, Progressives and labor organizers responded to the injustices of the Gilded Age by ushering in a new era of far-reaching reforms. And Thomas Paine, an early advocate of social insurance, was every bit as much an original founding father as any of the others. Or one can look abroad for inspiration. The workers of Solidarity who challenged Soviet communism in Poland didn’t count on the courts to help them; nor did Gandhi in British-controlled India.

For a truly mobilized democratic citizenry, the tactical possibilities are endless. Instances of mass civil disobedience (not just marches) could bring pressure to bear on Congress and the Court itself, with jails and courts throughout the country becoming clogged with demonstrators. Taxpayer revolts, general strikes, and other forms of collective action will always be an option for pushing back against minority rule. (“You want originalism,” may come the battle cry: “How’s this for originalism? No Taxation without Representation!”) Democracy is never conceded by its enemies without a fight; it must always and everywhere be demanded—and then defended—by those who benefit from it. Real democracy is always attainable, so long as people prove willing to rise up and claim it for themselves.

Copyright: Project Syndicate, 2018.

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