The perils of Marbury presidentialism

When she was nominated, quite a few people speculated that a lot of Republican senators would vote for Ketanji Brown Jackson’s nomination, given that “no” votes would almost certainly be futile. The members of the GOP’s rapidly shrinking club of senatorial bipartisan fetishists could therefore indulge their particular kink at no practical cost, with the extra added benefit for them of proving how totally not racist or sexist they were by voting for a black woman.

It’s not working out that way.  After two days of mainstreaming crypto-QAnon memes by claiming that Brown Jackson is soft on child porn, it’s clear that almost no Senate Republicans are going to vote for her – maybe Our Lady of the Perpetually Furrowed Brow, and Lisa Murkowski, but that’s probably it.

The breakdown of the norm that senators in the out party should vote for a SCOTUS nominee unless the nominee was some combination of tainted by political scandal (Fortas), too obviously an undistinguished partisan hack (Haynsworth and Carswell), a jurisprudential radical (Bork), or a sexual harasser (Thomas) has been quite gradual, but it’s now apparently complete.

Percentage of senators in the out party that voted for SCOTUS nominees in the 1980s and 1990s

O’Connor, Scalia, and Kennedy got 100% of Democratic votes.

Ginsburg and Breyer got 93% and 79% of Republican votes respectively.

Percentage of senators in the out party that voted for SCOTUS nominees in the 21st century

The nomination of John Roberts in 2005 marked a kind of transition point.

Democratic votes for Roberts:  51%

Democratic votes for Alito: 9%

Republican votes for Sotomayor: 22%

Republican votes for Kagan:  12%

Democratic votes for Gorsuch: 6%

Democratic votes for Kavanaugh:  2%

Democratic votes for Barrett:  0%

What’s happened with these nominations is just a microcosm of what’s happened in American politics in general:  The two major parties have become much more ideologically coherent, which means that every nomination is now a replay of the Bork nomination, because every SCOTUS nominee is in fact a jurisprudential radical, from the perspective of what is now the “mainstream” view in the out party.

This situation creates an interesting twist on Juan Linz’s famous critique of presidential systems. Linz argued that such systems are inherently unstable in any society that features ideologically coherent and disciplined parties, because the legislature and the executive both have strong claims to representing the sovereign power in that society, which leads to intractable conflict when these two branches are split between parties.

What this analysis leaves out is that the situation becomes even more incoherent in a system such as the American one, which features a tradition of aggressive judicial review by federal courts in general and the Supreme Court in particular.  This in effect creates a third claimant to the sovereign power: one that is both much less democratically accountable than either the legislature or the executive, and at the same time capable of exercising something close to an absolute veto over either of them, because of our tradition of judicial supremacy – a tradition invented, of course, by the very branch that exercises it.

This is the kind of situation that seems to almost inevitably lead to some sort of fundamental crisis of legitimacy.  Linz pointed out that the United States had avoided such crises – subject to one notable exception – because America’s major political parties tended to be loose coalitions rather than ideologically coherent voting blocs.

Those days are obviously over.

To the best of my knowledge, Linz didn’t address the judicial supremacy component of the perils of American presidentialism, but when a few weeks from now the SCOTUS overrules Roe v. Wade – a decision supported by strong national majorities, but opposed by a disproportionately powerful minority of ideological zealots — the salience of this additional complication to our gathering legitimacy crisis is going to become evident to all but the most willfully blind institutionalists.