The Supreme Court’s Legitimacy Crisis

Test your Supreme Court knowledge: In the entire history of the court, exactly one justice has been

a) nominated by a president who didn’t win the popular vote and

b) confirmed by a majority of senators who collectively won fewer votes in their last election than did the senators who voted against that justice’s confirmation.

Who was it?

If you’re like me, your mind started leapfrogging back to the 19th century. After all, this sounds like one of those oddities that was far more likely to have happened when our democracy was still in formation.

So let’s see … John Quincy Adams lost the popular vote in 1824. Someone he named to the Court? Or Rutherford B. Hayes — lost to Samuel J. Tilden in 1876, then was named president by a rigged commission. Maybe him?

It’s neither of those.

Then perhaps it’s a trick question? George W. Bush lost the popular vote in 2000. Good try, but he didn’t name a court nominee until his second term, when he won the popular vote.

No — it turns out you don’t have to go back very far at all. The answer is Neil Gorsuch.

Donald Trump won just under 46 percent of the popular vote and 2.8 million fewer votes than Hillary Clinton. And Judge Gorsuch was confirmed by a vote of 54-45. According to Kevin McMahon of Trinity College, who wrote all this up this year in his paper “Will the Supreme Court Still ‘Seldom Stray Very Far’?: Regime Politics in a Polarized America,” the 54 senators who voted to elevate Judge Gorsuch had received around 54 million votes, and the 45 senators who opposed him got more than 73 million. That’s 58 percent to 42 percent.

And if the Senate confirms Brett Kavanaugh soon, the vote is likely to fall along similar lines, meaning that we will soon have two Supreme Court justices who deserve to be called “minority-majority”: justices who are part of a five-vote majority on the bench but who were nominated and confirmed, respectively, by a president and a Senate who represent the will of a minority of the American people.

And consider this further point. Two more current members of the dominant conservative bloc, while nominated by presidents who did win the popular vote, were confirmed by senators who collectively won fewer popular votes than the senators who voted against them.

They are Clarence Thomas, who was confirmed in 1991 by 52 senators who won just 48 percent of the popular vote, and Samuel Alito, confirmed in 2006 by 58 senators who garnered, again, 48 percent of the vote.

And finally, ponder this. If fate were to hand President Trump one more opportunity to put a justice on the court before 2021, it would almost certainly again be a bitterly contested and close vote, and it would probably leave us with a majority of Supreme Court justices, five, who were confirmed by senators who received a minority share of the vote.

This sort of thing has never happened, by the way, with nominees advanced by Democratic presidents. First, no Democratic president has ever taken office after losing the popular vote. And second, justices nominated by Democrats have never been confirmed by such narrow margins. Of the four liberals currently on the court, all received 63 votes or more, from senators winning and representing clear majorities of their voters.

If you believe Christine Blasey Ford over Judge Kavanaugh, and if you believed Anita Hill in 1991, you are understandably enraged over the fact that we are about to have two Supreme Court justices who made it to the bench under broad suspicion that they did so having lied about their sexual histories and their treatment of women.

But I implore you to take a moment to be angry about all this, too. This is a severe legitimacy crisis for the Supreme Court.

The court, as Professor McMahon notes, was intended never to stray far from the mainstream of American political life. The fact that justices represented that mainstream and were normally confirmed by lopsided votes gave the court’s decisions their legitimacy. It’s also why past chief justices worked to avoid 5-4 decisions on controversial matters: They wanted Americans to see that the court was unified when it laid down a major new precedent.

But now, in an age of 5-4 partisan decisions, we’re on the verge of having a five-member majority who figure to radically rewrite our nation’s laws. And four of them will have been narrowly approved by senators representing minority will.

How has this happened? Conservatives would look at the numbers I’ve presented and say: “Look, this shows that our side is more reasonable than the other side. Republicans vote for nominees they don’t like in greater numbers than Democrats do. We’re the civil ones.”

The real explanation, of course, is quite different. Bill Clinton and Barack Obama did not nominate jurists who had left paper trails of judicial extremism or dropped other hints that their jurisprudence would be radical.

Republican presidents have. None more so than Mr. Trump, who seems to have outsourced the judicial-selection process to right-wing groups like the Federalist Society and the Heritage Foundation and twice nominated judges with an eye cast largely toward how happy they would make conservative evangelicals.

And so Republicans are doing to the Supreme Court what they have already accomplished in Congress. There, through aggressive gerrymandering, they’ve muscled their way to a majority even as their candidates have sometimes received collectively fewer votes than Democrats. And now they’re doing it to the court, by breaking the rules (Merrick Garland) and advancing nominees who are confirmed by legislators representing minority support.

Judge Kavanaugh’s alleged youthful behavior is a scandal, but this legitimacy crisis is one too, and with arguably greater consequences. Mitch McConnell, the Senate majority leader, may not care about them. But Chief Justice John Roberts, and for that matter Brett Kavanaugh, surely should.

Michael Tomasky is a columnist for The Daily Beast, editor of Democracy: A Journal of Ideas and a contributing opinion writer.

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