Institutional legitimacy must be earned

Stephen Breyer has decided that threat Republicans pose to American democracy must be squarely met by…admonishing liberals to defer to Republicans, especially Republican judges:

To Breyer, an occasional bad decision, even a hugely consequential one like that in Bush, is a small price to pay for maintaining an institution that can prevent elected officials from trampling our constitutional rights.

But what happens if the Court becomes hostile to these very same rights? What happens, for example, if decisions such as Bush become routine, and the Court frequently intervenes in elections to install candidates who belong to the same political party as a majority of the justices? What happens if the Supreme Court dismantles what remains of the Voting Rights Act (it’s already destroyed most of it), thereby opening the door to Jim Crow voter suppression in the process? What happens if the Court forbids state supreme courts or Democratic governors from blocking Republican-drawn gerrymanders, something four justices have already signaled they may be willing to do?

The most troubling provision of Georgia’s new voting law permits the state’s Republican-controlled legislature to effectively seize control of local election boards, which have the power to disqualify voters and close polling places. What happens if Georgia Republicans shut down half the precincts in the Democratic stronghold of Atlanta, and the Supreme Court does nothing as tens of thousands of Democratic voters give up in frustration rather than wait in hours-long lines to cast a ballot?

I asked Breyer a version of these questions at a lecture he delivered at Harvard Law School in April (Breyer’s book is derived from this lecture, and Harvard allowed members of the public to submit questions to the justice).

“Should we accept the proposition that public acceptance of judicial decisions is a per se good?” I asked Breyer. I provided a few examples of cases where it might be appropriate to resist the decision, such as if the Supreme Court “so dismantles our voting rights that we cease to have a meaningful ability to elect a government that is not led by the same political party the controls the Supreme Court.”

Breyer’s response to my question was twofold. The first was a warning about what can happen should the public turn away from accepting judicial decisions. “Go turn on the television set,” he warned, “and go look at what happens in countries that try to do without” a rule of law grounded in deference to judicial rulings.

Then he seemed to admit there may be circumstances where such deference should be abandoned, though only if those circumstances were truly extraordinary. “What about Hitler?” Breyer asked rhetorically, before denying that anyone currently on the Court reaches that bar — “We don’t have Hitler.”

No serious person would claim that, say, Brett Kavanaugh or Amy Coney Barrett is the moral equivalent of a Nazi. But Breyer is either asking us to accept a Supreme Court that could entrench the Republican Party’s power, or denying we have such a Court right now.

If the former is true, he should explain why the “rule of law” is worth maintaining if the people have no control over who writes the laws. If he’s claiming the latter, well, I hope he’s correct. But, should he allow his seat on the Supreme Court to be filled by another Clarence Thomas or Neil Gorsuch, both of whom have called for extraordinary new constraints on voting rights, he may not remain correct for very long.

Courts can uphold democratic values, or they can undermine them. The idea that the public has a solemn obligation to treat them like the former when they’re doing the latter is absurd. Similarly, if the Court consistently issues highly partisan decisions because justices are nominated and confirmed (or not confirmed) precisely to produce these outcomes, if this undermines the legitimacy of the Court that rests on the justices and the people responsible for putting them on the Court, not journalists and scholars who accurately describe what the Court is doing. Precisely because democratic norms are so important it is critical to be honest when courts are undermining them.

And, of course, what’s particularly ridiculous about Breyer implicitly defending a refusal to retire strategically to uphold norms is that strategic retirement is the norm. Even in Justice Ginsburg’s case, she clearly wanted to (and, however over-optimistically, expected to) be replaced by a Democratic president, and she didn’t resign under Trump despite seriously fading health. The next person to come up for a coherent explanation for why it’s OK to consider the incumbent president when deciding not to retire but not when deciding to retire will never exist. Ginsburg and Breyer refusing to retire strategically when Kennedy did will do nothing to restore democratic norms, but it could play a major role in ending the democratic experiment in America.