The Supreme Court seems strangely immune to the bitterness that plagues our politics. Even now, when Americans can no longer agree on basic facts, the Court’s relative popularity has endured. Following Donald Trump’s 2016 election, the Court has what may be its most conservative majority in decades. And yet this August, the Supreme Court recorded its highest approval rating since 2009.
But there are so many ways that the current moment could turn out very badly for the Court. First off, Senate Majority Leader Mitch McConnell seems ready to test just how much damage the Court’s institutional integrity can take. In 2016, McConnell refused to hold hearings for Barack Obama’s Supreme Court pick, Merrick Garland, because the next election was too close. Then, within hours of Justice Ruth Bader Ginsburg’s passing, McConnell vowed to replace her before the next election.
Ginsburg, of course, was no ordinary justice. She was a hero to many. McConnell’s speed in replacing her comes across as not merely unseemly; to many who admired the late justice, it will also be a declaration of war.
Regardless of what McConnell does, the Court now looks far more conservative than the electorate. That too doesn’t bode well for the Court’s legitimacy, especially when the justices could once again decide the result of a presidential election. The Court may have to wade into one of the hundreds of voting-rights lawsuits triggered by the COVID-19 pandemic. Many have followed fights about whether the president has deliberately crippled the U.S. Postal Service to make it harder to vote. Republicans have claimed (without evidence) that mail-in voting will lead to massive fraud and have sued to stop it.