The Counter-Minoritarian Difficulty

Marty Lederman sums up the fundamental problem: Republicans have controlled the Supreme Court since early in the Nixon administration, although Democrats have won the popular vote in 7 of 12 elections:

On May 15, 1969, Justice Fortas resigned from the Supreme Court, thereby ending a seven-year period in which a 5-4 majority of the sitting Justices had been appointed by Democratic Presidents. I had just turned eight years old. I’m now almost 58. And yet that day in May 1969 remains the last moment in time that a majority of the Court was appointed by Democrats. That’s right: By the time the Court’s current Term ends in June, it will have been more than 50 years of GOP-appointed control.

The appointment of Merrick Garland should have brought an end to that extraordinary streak. Retaining control of the Court, however, has become an article of Republican faith–hardly surprising when it’s become a bulwark of theirs, a virtual background assumption, for fully half a century. And now, thanks to Mitch McConnell’s deviousness, tactical brilliance and tenacity, it appears entirely possible that it might be another 50 years (or perhaps even longer) until we see another Democratic majority. A full century of Republican control is not hard to imagine. (And how’s this for a (related) factoid?: In only seven of the past 108 years (1946-1953) has the Chief Justice of the United States been a Democrat who did not fight on behalf of the Confederacy.)

It would be one thing, of course, if the Presidency and the Senate had been Republican-dominated for all of my adult life: In that case, such GOP dominance of the Court over many generations might be alarming (and frustrating), but would hardly be surprising. But Democratic Presidents have served five terms since 1969, and have won a majority or plurality of the popular vote in seven of the twelve elections in that period–including in six of the past seven elections. Democrats have also secured a majority of the Senate in more than half of the 25 Congresses since Fortas’s resignation—including at least a couple of huge majorities. Yet nevertheless, the Court has remained, and will continue to remain, in GOP control for decades on end.

This stark contrast between electoral and judicial ratios is especially pronounced today. When Justice Kavanaugh takes the bench he will solidify a very strong, and unusually cohesive, five-Justice Republican majority, only one member of which (Justice Thomas) was appointed by a Republican President who entered office with a majority or plurality of the popular vote. Indeed, in that 27-year span, which covers the entire tenure of all of the current Justices, a Republican President has won the popular vote in just one election (2004, of course, which resulted in the Roberts and Alito appointments).

Moreover, two key Justices in this robust majority, Gorsuch and Kavanaugh, not only were appointed by a President who received almost three million votes fewer than his Democratic opponent–and who continued to have historically low disapproval ratings when he made the appointments–but their nominations were actually rejected by Senators representing strong majorities of the nation’s population. The Senators who confirmed Gorsuch, for example, represented states in which only 47 percent of Americans lived (based on the 2017 estimates, and splitting the population totals for the nine states (CO, FL, ME, MO, MT, NV, OH, PA, WI) in which the two Senators split their votes). The gap on Kavanaugh’s vote is even greater: Using estimated 2018 population figures—and not even counting the millions of Americans in the territories, including Puerto Rico—my rough calculation is that Kavanaugh was confirmed by the votes of Senators representing only 44 percent or so of the nation’s population (once again, splitting equally the population totals for the 13 states (AL, AK, CO, FL, IN, ME, MO, MT, ND, NV, OH, PA, WI) in which the two Senators split their votes) [I’m counting Sen. Daines as a “yes” vote and Sen. Murkowski as a “no.”]

And, of course, this problem is exacerbated by these Republican Supreme Court majorities doing what they can to make the defects of American democracy worse:

The new majority will likely take significant steps, for instance, to sanction further Republican-enacted limits on the franchise; to bless efforts that skew the electoral system strongly in favor of Republican majorities; and to invalidate laws of other kinds (campaign finance regulations; agency fees; affirmative action initiatives; etc.) that tend, on the whole, to strengthen Democratic constituencies. In other words, we should expect to see plenty more decisions to add to an already imposing list that includes, e.g., Bush v. Gore; Crawford/Husted; Gill/Benisek, et al.; Citizens United/WRtL (and other campaign finance cases); Shelby County; Parents Involved; Janus; Epic/Concepcion, et al.; etc.

And then there are the many cases the Court majority will likely decide, invoking several different constitutional provisions and doctrines–the Free Speech Clause (especially); perhaps the Property and Contract Clauses; extra-textual federalism limits; limiting constructions of Congress’s post-Civil War enforcement powers; perhaps the Free Exercise Clause (and certainly RFRA); etc.—to narrow the scope of constitutionally permissible initiatives if and when the Democrats ever do again obtain majorities in the political branches.

The new five-Justice majority is also likely to dramatically enhance executive authority, in both foreign and domestic affairs, including by, inter alia, endorsing “unitary executive” theories (rejected by all but one of the Justices on even the Rehnquist Court) and statutory interpretations (see, e.g., the SG’s aggressive brief in Lucia) that will constrict agency independence; perhaps re-asserting a more robust nondelegation doctrine; discounting the role of international law in construing the President’s war powers (see Justice Kavanaugh’s remarkable opinion in al Bihani, discussed here); applying extraordinary deference to the President in areas of foreign affairs, national security and immigration, even in cases (e.g., Trump v. Hawaii) where the presidential rationales are transparently pretextual.

In all of these ways, the Court will (probably) strengthen the ability of the Republican Party to entrench electoral power, and place obstacles in the way of future Democratic Presidents and legislatures to accomplish their desired substantive ends, despite the fact that the nation’s demographics and its electorate appear to be heading inexorably in the opposite direction.

This is not a stable or defensible situation, and the more aggressive the Trump Court is, the more likely a constitutional crisis will be.