Scott Pruitt’s resignation prompted a number of columns devoted to the “legacy” he leaves–if legacy is the right word for “stench of corruption.” Those columns did get me thinking, however. about the “legacies” of other elected officials and political operatives.
Mitch McConnell’s legacy, for example, will include the badly tarnished and diminished legitimacy of Congress and the Court. McConnell’s willingness to ignore the Constitution’s mandate that the Senate “advise and consent” to a Presidential judicial nominee not only besmirched the reputation of the Senate, but added another blow to a series of events–beginning with Bush v. Gore— that have compromised the Court’s reputation for integrity and evenhandedness.
For his part, Trump is likely to leave several legacies–all profoundly negative–if, as we hope and pray, he does at least leave us with a recognizable country. But it is worth noting one of those legacies–the responsibility that he and McConnell share for the Supreme Court’s politicization and corresponding loss of legitimacy.
In a recent New York Times op-ed, law professors Lee Epstein and Eric Posner considered the way in which the growth of partisanship has affected the Court’s reputation, and wondered “whether a Supreme Court that has come to be rigidly divided by both ideology and party can sustain public confidence for much longer.”
It hasn’t always been this way.
In the 1950s and 1960s, the ideological biases of Republican appointees and Democratic appointees were relatively modest. The gap between them has steadily grown, but even as late as the early 1990s, it was possible for justices to vote in ideologically unpredictable ways. In the closely divided cases in the 1991 term, for example, the single Democratic appointee on the court, Byron White, voted more conservatively than all but two of the Republican appointees, Antonin Scalia and William Rehnquist. This was a time when many Republican appointees — like Sandra Day O’Connor, Harry Blackmun, John Paul Stevens and David Souter — frequently cast liberal votes.
Today’s Justices are far more predictable, which is to say, far more ideological. And as Epstein and Posner note, it is much easier to assault judicial independence when the public sees the judiciary as just another political body.
The Court loses legitimacy when its reputation as an objective, nonpartisan arbiter of Constitutional fidelity is replaced by a belief that it is a political tool reflecting the priorities of the partisans who selected the Justices. It’s worse when a majority of those Justices represent world-views held by only a minority of Americans.
In a recent article, Kevin McMahon considered the effect on the Court’s legitimacy.
Since Donald Trump lost the popular vote in the 2016 election, he is, by definition, a minority president, elected by a minority of the voters.
Similarly, I define a “minority justice” as a nominee who won confirmation with the support of a majority of senators, but senators who did not represent a majority of voters.
Consider Gorsuch. He was supported by a majority of senators – 51 Republicans and three Democrats. But the votes earned by those 54 senators only added up to a total of 54,098,387.
The 45 senators who opposed Gorsuch, all Democrats, collected 73,425,062 votes in their most recent elections – a nearly 20 million-vote difference.
There are now three Supreme Court justices – Clarence Thomas, Samuel Alito and Gorsuch – that fit the description of a “minority justice.” And they are the only three in the nation’s history.
Now, there is a possibility of a fourth “minority justice” – the second appointed by a “minority president.”
That raises a question that goes to the heart of the Supreme Court’s legitimacy in our democracy: Will this be a court out of line with America?
These are the questions that ought to keep our elected Senators and Representatives up at night–but very few of the people we have elevated to the federal legislature seem to know or care about anything other than winning and losing elections.
Their “legacies” will be the abandonment of America’s constitutional framework–and any concept of statesmanship.