The end of Roe and the deepening Supreme Court legitimacy crisis, continued

First, a quick comment on Tuesday’s January 6 Select Committee hearings. Cassidy Hutchinson was a compelling witness. Barely twenty four at the time of the attempt to overthrow the 2020 elections, Hutchinson had a frankly astonishing degree of influence as a top aide to the White House Chief of Staff, Mark Meadows. That House Minority Leader Kevin McCarthy would call Hutchinson on the afternoon of the 6th to insist that *she* stop the President from coming to Capitol Hill reflects the extraordinary position she had come to hold in our government. People with legal expertise I lack believe that her revelations provide a critical new piece of the foundation for potential criminal charges against Trump. For laypeople like myself, perhaps the most eye-popping story Hutchinson told was of Trump’s supposed attempt to commandeer the presidential vehicle to drive it to the Capitol that day. But the most revealing was the tantrum Trump threw because not enough people were coming to his rally on January 6, his insistence that security stop screening for weapons at that rally, and his rejection of entreaties to continue screening by saying “they’re not here to hurt me.” That both reveals his state of mind and awareness of the nature of the crowd he was about to incite *and* his general psychopathy.

One more note. The Trumpist frenzy that descended upon Hutchinson after her testimony on Tuesday has included many versions of “she’s a nothing, she’s a peon, why should we take her seriously?” At times like this, it takes so little to reveal the right’s sneering elitist contempt, its relentless anti-elitist branding notwithstanding.

OK, back to the Supreme Court….

A major factor in the looming legitimation crisis of the Court is that it owes its majority to appointments by presidents who lost the popular vote and to a stolen seat. The six-member majority includes three Justices nominated by popular vote loser Donald Trump, including the stolen seat, vacated when Justice Scalia died in February, 2016. Alito and Roberts were appointed during George W. Bush’s second term, after he’d won a close re-election in 2004 against John Kerry. That election is the *only* one since 1988, when W’s father won, in which a Republican has won more votes for the presidency than the Democratic nominee. W. himself was only president in 2004 because he was elected despite winning fewer votes than Al Gore in 2000, Bush’s ultimate victory sealed by one of the most corrupt Supreme Court decisions in our history. Then 9/11 happened….

The Senate itself is frequently in the hands of the party that is, in the aggregate, the popular vote loser. According to detailed analysis, not since 1998 have sitting Republicans won more cumulative votes for the Senate than their Democratic counterparts. And yet, Republicans have frequently controlled that body since then, including at time of Scalia’s death. The Senate also is becoming less representative of the United States over time. In the current evenly divided upper chamber, Democrats represent 56.5% of the population, Republicans 43.5%. And that imbalance will surely grow.

Yes, the Constitution allotted each state two Senators to ensure that small states’ representation in one of our two legislative bodies wouldn't be swamped by those of larger states. The considerations the Constitution’s drafters contemplated in the 1780s, however, do not obtain now. Among other things, our elections have become substantially more nationalized in the past generation. Senators still represent constituents in their own states in various ways. But they also represent political parties, "factions" as the founders called them. (And famously, those who constructed our constitutional system were deeply fearful and scornful of the “mischiefs of faction”). A consequence of the subservience of our elected legislative bodies to parties and the nationalization of our elections is that the mechanism for ensuring fragmented geographic representation has been transformed into one for largely unified ideological/factional representation. These dynamics convert social and geographical patterns into a skewed political system that substitutes so-called tyranny of the majority for tyranny of the minority. To put it another way, the intended purpose of the Senate’s design was to disperse power, not to concentrate it in minority rule. Not incidentally, the filibuster, which nowhere appears in the Constitution, exacerbates this dynamic. There is no plausible argument that the framers’ intended any of this.¹

In 2016, a minority-majority Senate simply refused to consider any Obama nominee to the Court, on the made-up grounds that presidents shouldn’t be able to appoint new justices in their final year in office. Of course, this is exactly what Republicans did in 2020, when Trump was able to name Amy Coney-Barrett to the bench just weeks before his election defeat. In conservative circles, a repeated justification for the unprecedented obstruction of 2016 and the hypocritical appointment of Coney-Barrett in 2020 is that Democrats were really, really mean to Robert Bork when they considered and rejected his nomination to the Supreme Court in 1987. To hear many of them tell it (and yes, I’ve read some of these missives), there has never been a more vicious, outrageous assassination of a good man’s character than that which Bork suffered through in those hearings. This treachery justifies *any* subsequent Republican behavior concerning judicial appointments.

Fundamentally, the Bork origin story is nonsense. The same Democratic-controlled Senate that rejected Bork then allowed Anthony Kennedy to sail through his confirmation in 1988, Ronald Reagan’s final year in office. And it’s that seat, thirty years later, that Kennedy resigned in order to ensure that a Republican President could name his replacement, Brett Kavanaugh. To sum up, current conservative mythos insists that Democratic Presidents shouldn’t be allowed to fill vacancies, arguably ever, because they once rejected a nominee for a seat, but nevertheless gave Republicans the opportunity to hold that seat for what will likely be a half century.

Given the kind of grievance-fueled false equivalency that is the warp and woof of the Republican Party in our time, one can scarcely contemplate the bloody murder they’d be screaming if they *ever* had to live under a Democratic president who hadn’t won more votes than their candidate. Indeed, it’s become normal that many scream bloody murder when they have to live under a Democratic President who has won both the popular and electoral vote. First birtherism and then the Big Steal reflect an especially dangerous new development in our politics - that a growing number of Republicans, including certain presidents, insist they only lose because of systematic fraud.

One can argue that Mitch McConnell, despite his apparently sincere distress as the events of January 6 unfolded, played a crucial role in normalizing the idea that the GOP does not have to accept losing. He did that when he and every one of his Senate Republican colleagues refused even to consider Merrick Garland’s nomination on the theory, it appears, that Democratic presidents in their final year in office aren’t really still president.

In sum, the Court majority’s commitment to implement, under cover of law, an avowedly right-wing political agenda, the fact that the majority exists in spite of the collective wishes of the voters empowered to choose the elected officials who appoint our Justices, and growing Republican rejection of the idea that there is such a thing as a legitimately elected Democratic president, leaves us at a perilous point. In the light of all this, a fundamental question in the years ahead is whether this Court will make itself an explicit instrument of that rejection.

A final note that I know, for a lot of folks, is a tough pill to swallow. Supreme Court seats are the most precious commodities in our political system. And a cold, hard calculus about the realities of their transmission makes one thing clear - if you roll the dice about when you should step down, you're increasing the chances that you will be replaced by a president who is anathema to everything you believe in. I’m speaking, of course, about the late Justice Ruth Bader Ginsburg, a legal legend before her appointment and inspiration to so many. It’s been reported that as the end of her life approached, Ginsburg herself came to deeply regret her decision not to let Obama replace her prior to the 2014 midterms. We face stark realities, and Ginsburg’s decision not to do what O'Connor did, what Kennedy did and what Breyer has done will have long lasting consequences. Even had she stepped down, Democratic-appointed Justices would still be in the minority. But we’d be in a very different place.

The next and final post in this series on the Court will try to divert you from the hemlock you may now be reaching for.

1. In response to these facts, one hears with increasingly frequency in conservative quarters that we’re a “Republic, not a democracy.” That is simply untrue in the way the right-wing argues for it. We’ll take that up in a future post.