A Dangerous Moment for the Court

And the country.

Senator Mitch McConnell and other Republicans speak to reporters on December 3, 2019.
Senator Mitch McConnell and other Republican leaders speak to reporters on December 3, 2019. (BRENDAN SMIALOWSKI / AFP via Getty)

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.

These battles probably won’t stop on Election Day. As he trails in the polls, President Trump has already cast doubt on the legitimacy of the election. It would not surprise anyone if he asked the Supreme Court to intervene after the votes are in. In 2000, the Court’s reputation took a hit after the justices handed a win to George W. Bush in Bush v. Gore. The damage to the Court and the nation would likely be much worse this time around.

This damage could be compounded by the fact that, regardless of who wins this year’s election, many expect Joe Biden to easily carry the popular vote. If he does, that will mean Democrats have won a popular majority in seven of the last eight presidential elections. And yet no Democrat has chosen a chief justice since 1953. Democrats have not nominated a Supreme Court majority since 1969. The Court is much more conservative than the electorate, and voters know it. The number of voters who think the Court is too conservative hit a new high just last year. Historically, the Supreme Court has rarely broken too radically with public opinion without some kind of backlash. Yet today, the Court reflects the will of a smaller and shrinking slice of the electorate.

Democrats fed up with the status quo have toyed with the idea of packing the Court—adding more members to create a more liberal majority. Ginsburg’s passing—and McConnell’s reaction to it—have set off another round of demands for court-packing. The journalist Jill Filipovic, writing in The Washington Post, urged Democrats to follow through on a threat to pack the Court if McConnell succeeds in pushing through a nomination. Ian Millhiser, writing for Vox, argued that court-packing may be the “only solution.” This may well be true; it is also, as far as solutions go, an indication of the depth of the Court’s legitimacy problem.

Of course, it’s not clear that Democrats will be able to carry through on their threat to pack the Court, even if they want to. That would require control of both houses of Congress and the White House, plus a majority convinced that court-packing would be worth the political cost to the party.

But if they do pursue this strategy, there would certainly be damage to the Court’s reputation. Many already view the Court as a partisan institution. They are right. There is a reason that Ginsburg did not retire during Trump’s presidency—or Anthony Kennedy during Barack Obama’s second term. But the Court need not be only a political institution. The justices see themselves as judges, not partisans. Their decisions occasionally defy expectations. And regardless of what the Court is doing now, it can serve as an impartial defender of important rights—or of democracy in the United States. Court-packing would completely undermine this ability, because the pretense that judges are more than partisans would be impossible to maintain.

Moreover, if Democrats pack the Court, Republicans will assuredly do the same the first chance they get. McConnell and his colleagues are unlikely to discover a deep commitment to the Court’s institutional integrity. Each election would trigger a new debate about how big the Court should be to get the “right” result.

Dynamics do exist that could avert a crisis for the Court’s integrity. Democrats may yet hesitate to pack the Court. In the past, court-packing has proved to be unpopular. This time, it might also be a distraction from the substantive agenda of a new Congress or president.

And McConnell’s enthusiasm to the contrary, Republicans might have a good reason to wait on replacing Justice Ginsburg. With Trump at the helm, the country has failed to handle a deadly pandemic. The president has also deliberately inflamed the nation’s racial divide and shown profound hostility to calls for racial justice.

With Ginsburg’s passing, Trump may finally have found a way to get conservatives to back him at the polls. A Supreme Court vacancy might be too tempting even for right-leaning voters who are otherwise tired of Donald Trump’s America.

Democrats and Republicans alike will have to weigh whether the short-term gains of transforming the Court are worth the price. The two sides could even broker a compromise. If Republicans wait to confirm a replacement for Ginsburg, the Democrats could wait to pack the Court. At the moment, though, neither shows signs of deescalating. The president tweeted that Ginsburg’s seat should be filled “without delay.”

The rest of America should hope that the country’s political leaders pause before the damage to the Court’s reputation becomes irreversible. This week, many are mourning Ginsburg, even the conservatives eager to replace her. Her legacy is inextricably tied to the Supreme Court’s own. We are in real jeopardy of cheapening both.