The Supreme Court, legitimacy, and post-regime politics
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Jamelle Bouie points out that prominent Democratic politicians mostly aren’t attacking the legitimacy of the Supreme Court, but they should be:
Republicans, in other words, are wrong; Democrats are not out to undermine the Supreme Court.
But they should be.
The problem of the Supreme Court isn’t that its members are mired in ethics scandals (although they are). It isn’t that it’s been captured by a network of conservative apparatchiks and right-wing billionaires (although it has).
No, the problem of the Supreme Court is that it is a powerful and unaccountable branch of government whose traditional role has been to protect the rights of property and the prerogatives of the privileged above all other concerns. And on those rare occasions where the court has worked for the interests of ordinary Americans — for workers, for Black Americans, for sexual minorities — it has been to either reverse previous decisions (such as Brown v. Board of Education’s reversal of Plessy v. Ferguson) or free Congress to enforce the Constitution as written.
For the left-of-center of American politics, the Supreme Court has been, over the course of its long history, more hindrance than help. And to the extent that liberals began to trust the court as an institution, it’s because they made a mistake, confusing the exceptional rulings of the court under Chief Justice Earl Warren for the norm. The Supreme Court, as the legal scholar Lucas A. Powe Jr. has observed, is “part of a ruling regime doing its bit to implement the regime’s policies.” If the court appeared liberal — or at least friendly to liberalism — in the first decades after the Second World War, it was because of the hegemony of New Deal liberalism over American politics, not because of any inherent quality of the Supreme Court itself.
No one party or ideological movement has established hegemony over American politics in our moment, but the current Supreme Court represents a coalition that has burrowed itself into the judiciary in the hope that it can reshape the political order by judicial fiat even as it loses at the ballot box.
So far, there’s every indication that this will work. That’s because without court expansion or other serious reforms to the structure of the court — and absent unforeseen circumstances like an inopportune death — Republicans can expect to hold a majority on the Supreme Court until 2065, according to a recent paper on possible partisan composition of the court over the next century.
The last two grafs are particularly important. What’s new about this particular configuration of institutional powers is that the Supreme Court is strongly affiliated with a party that is not a dominant governing coalition. The Taney and Fuller and White Courts were awful, but they were awful because they more or less faithfully represented the views of the dominant electoral coalition of their eras. The Roberts Court, conversely, represents the party that has won the popular vote once in the last 8 elections. There’s really no precedent for this in American history. In the short term, there is no viable remedy for it, and any longer-term remedy would require something to overcome the current trend of educational polarization that would allow the Democratic Party to be a dominant enough electoral coalition for Congress to use the formal powers it has to check the power of the judiciary. And needless to say we will need the too-large quantity of Democrats who seem unaware that Earl Warren is dead to fully age out. But as Jamelle also correctly observes, the fact that the Court is in a position to tilt the rules in favor of the minority faction and has already done so in critical atrocities like Shelby County and Rucho makes escaping this anti-democratic feedback loop even harder.
As dismal as the history of the Supreme Court has been, this particular Court is particularly illegitimate, and this needs to be widely recognized among the non-reactionary elements of American politics before anything can be done about it.