Shortly after Brett Kavanaugh was confirmed to the Supreme Court, Mitch McConnell said he would not rule out filling a Court vacancy should one arise during the final year of President Trump’s term, despite refusing to act on President Obama’s nomination of Merrick Garland for this very reason. When it looked like Hillary Clinton was going to win the 2016 election, the conservative Heritage Foundation called for a four-year blockade against anyone she would have nominated to the Court. Conservatives didn’t have to resort to such blatantly undemocratic methods when they began their quest decades ago to shape economic and social policy by controlling the judicial branch, because they could rely on popular majorities to give them the White House. Five times in the six elections spanning 1968 and 1988, Americans chose Republican presidents and gave them the power to nominate judicial conservatives. Then, public opinion began to change. In the seven elections since 1992, Republicans won the popular vote just once. In 2008, a new coalition of young people, voters of color and single women elected Barack Obama, while the older white voter base at the core of Republican electoral success for so many years started melting away. So the Republican judicial strategy became more blunt: Republicans get to appoint justices. Democrats do not.
The institutional consequences of this strategy are devastating. Arguably more than any branch of government, the Court relies on its legitimacy to function effectively. When the public and elected officials in the other branches accept the process by which justices are placed, they are more likely to abide by judicial decisions they may not like. Because the Court has no enforcement power, it has to maintain a higher level of credibility than the two blatantly political branches. Justices can wade into volatile political territory and the public will broadly accept their decisions as long as they feel the nomination and confirmation process is fair. Democrats still feel the wrath of conservatives for their treatment of President Regan’s nomination of Robert Bork. Republicans will experience similar fallout from the Kavanaugh nomination. But the systematic attempt to impose a judicial philosophy on the country by any means possible is larger than any single nomination and a direct threat to the integrity of the republic.
You can work backwards from Kavanaugh to raise legitimacy questions at every stage of the construction of the conservative Court majority. Republican senators orchestrated an opaque nomination process for Kavanaugh, culminating in a sham investigation of credible allegations of criminal behavior. His appointment was pivotal because Republicans refused to hold hearings on Merrick Garland. Had Garland been confirmed, it would have created a five-seat center-left Court majority and ended the right’s decades-long attempt to own the judiciary. Both Kavanaugh and Neil Gorsuch, who was confirmed to the Garland seat, are the appointees of a president who lost the popular vote and is under investigation for conspiring to steal his election with the assistance of foreign adversaries. John Roberts and Samuel Alito are the appointees of a president who also lost the popular vote and was elevated to office by Supreme Court conservatives who short-circuited the Florida recount. Clarence Thomas has served on the Court for decades with an asterisk next to his name.
Should Democrats return to power, there will be enormous pressure from their base to address the original sin of the Garland nomination. The constitutional corrective is impeachment, and a credible case could be made against Kavanaugh, but this would require Republican senators to cooperate in unraveling the conservative Court project. Democrats would instead have to resort to their own power strategy and legislatively expand the size of the Court to negate the conservative majority. Such a move would be legal. It would also be so controversial that in ordinary times it wouldn’t get a hearing. Not so today. From the mild-mannered corridors of the Brookings Institution, columnist E. J. Dionne writes that “there should now be no squeamishness” about adding two seats to the Supreme Court if Democrats win back the White House and Congress in two years. “The current majority on the court was created through illegitimate means,” Dionne proclaims. “Changing that majority would not constitute politicizing the court because conservatives have already done this without apology.” While I agree with Dionne, I fear that a significant minority of the public will not see it this way.
Yet if the composition of the Court remains as is, it will increasingly find itself out of step with a country that is rapidly moving away from the social and economic positions of the interests who masterminded the conservative majority. Should the Court dig in as each year public opinion takes another step to the left, its legitimacy crisis will only compound. The Court is always a lagging indicator of political and social change, but it maintains its legitimacy when it adjusts. The ideological majority of relatively young jurists selected to defend a right-wing agenda at all costs was engineered to resist or ignore these trends. This isn’t how democratic institutions are supposed to work. This is tyranny of the minority.