On Respect and SCOTUS
The Court is out of balance--and it is a design flaw.
U.S. Supreme Court Justice Clarence Thomas said he’s concerned efforts to politicize the court or add additional justices may erode the institution’s credibility, speaking Friday in Utah at an event hosted by former Republican U.S. Sen. Orrin Hatch’s foundation.
“You can cavalierly talk about packing or stacking the court. You can cavalierly talk about doing this or doing that. At some point the institution is going to be compromised,” he told an audience of about 500 people at an upscale hotel in Salt Lake City.
“By doing this, you continue to chip away at the respect of the institutions that the next generation is going to need if they’re going to have civil society,” Thomas said.
I cannot find a full transcript of the speech, so do not know if Thomas used the word “politicize” or if that is the reporter’s word choice, so I will focus here on “respect” and the notion that “at some point the institution is going to be compromised.”
While I wholly agree that there is a legitimate debate to be had about expanding the Supreme Court (indeed, our own James Joyner is opposed for reasons not unlike Thomas’) I want to push back on the notion that talk of expansion is cavalier as well as the notion that the status quo as it pertains to the Court isn’t already actively eroding respect for the institution.
I would note there are plenty of people, myself included, who are hardly “cavalier” in our reasoning about expanding SCOTUS. There is nothing, ultimately, that is sacrosanct about the number nine (it is neither constitutionally mandated nor has it even always been the number of Justices). Having said that, I fully understand the political obstacles to expansion and the fact that, yes, it would highlight the extremely political role the Court plays (and I say that deliberately because any assertion that the Court is not “political” is just so much hogwash, but expansion would certainly put a spotlight on the politics of it all).
Beyond that, “respect” for the Court is already in a state of damage. The way the Scalia and RBG seats were filled clearly underscored the power politics of the Court, plain and simple. A major mistake that is made in the assessments of how “political” the Court is or isn’t is that people pretend like how the Court is constituted (which is inherently political) doesn’t affect how the Court then decides. Indeed, the notion that the ways individual members of the Court think about the Constitution, law, and governing is anything other than politics is folly.
Again: “politics” has to do with power over governing. It is about having power to set and enforce rules over society. To be in a position to make decisions about how society will do X, Y, or Z is politics.
As the AP piece notes:
Those rulings will end up being a direct result of the politics of the Justices in question (their legal doctrines are almost certainly the result of their political POV). And the politics of those Justices were the reason they were picked by a given President (a political actor) who nominated them and, in turn, why they were confirmed (or, sometimes, not) by the Senate (a bunch of political actors).
As we are reminded of the confirmation process it is here that we find the real place where “respect” for the Court is eroding. In theory, there should be some level of political equilibrium in the Supreme Court. By this I mean that since the President nominates, each nominee ought to be selected by a politician who represents a majority of the population. Further, while the Senate majority that confirms each nominee may not be a true reflection of the majority of the country, it ought to be within shouting distance. As a result, the Court ought to be at least semi-representative of the country.
To be clear: I am not arguing that the Court ought to be a perfectly representative institution, but I am arguing that there ought to be some level of reasonable connectivity between popular political preferences and the composition of the Court. If this were not to be the case, we could select Justices in some non-political process (say as part of the civil service). The very fact that the Court is appointed by one politician and then confirmed by another set underscores that there is supposed to be some level of connection between the people and the bench even if it is a filtered one.*
There are some major problems with this equilibrium. We have increasingly seen the President be elected by a minority of the country (2000, 2016). This has, as I have noted before, created a situation in which most of the Republican nominees on the Court are directly linkable to a popular vote inversion in the Electoral College (five in total, which is a majority of the Court). While it is true that Bush’s two nominees (Roberts and Alito) were in his second term, the odds that he would have won the presidency in 2004 are radically diminished if he had lost in 2000. If Al Gore had become president in 2001 (as the winner of the popular vote), there is a more than decent chance that he would have filled those two seats during his second term.** The more egregious example is Donald Trump, who clearly*** lost the popular vote by almost 3 million. And yet, Trump appointed three members of the Court (Gorsuch, Kavanaugh, and Coney Barrett).****
I know readers of this site know all of this, but I think it is worth pausing to note: the majority of the Supreme Court is directly linked to the presidents who initially came to office without national majority support.
This is a political imbalance even for a system that is skewed away from pure representation.
Even if we set aside the popular vote issue, there is something out of balance for one president to be able to fill one-third of the Court in a single term. That, by itself, screams design flaw. Add in the perverse effects of the EC and the poor representational quality of the Senate and you get erosion of respect for the institution.
In regards to the Senate, its poor representation exacerbates the equilibrium question. When created, the idea that the Senate would be at least reasonably representative of the population given the mix and population sizes of the states***** meant, again, some level of reasonable equilibrium in the confirmation process (not to mention that the Framers did not conceive of the nomination process as being a partisan one, since they didn’t anticipate political parties).
These days the Senate over-represents Republicans, plain and simple. As I have noted before, the last time the Republicans in the Senate represented a majority of the population was 1996. This means, to pick the most egregious example when Justice Scalia died and the Republican-controlled Senate refused to even consider Obama’s nominee, it was a set of Senators representing a minority of citizens blocking a president who had majority support so that they could turn around and let a president with minority support fill the seat (to then be confirmed by a Senate representing a minority of the population).
Regardless of one’s theory of how the Senate should function, or whether one thinks this misrepresentation is justifiable, one cannot deny that it helps the Republicans influence who sits on the Court in a way that further erodes the degree to which the Court is even vaguely representative of national sentiment, especially as the EC’s flaws are amplified in the current era.
Throw into the mix the arbitrary way that vacancies occur, and the balance is even further thrown off.
It is this imbalance in our institutions that empowers minority preferences over the majority that is causing the erosion of respect that Justice Thomas says he fears. And I suspect this diminution of respect will grow when the current Court issues a series of rulings that runs counter to majority preferences on a host of controversial issues.
*I suppose we could say that since the EC selects the president and the Senate just represents states regardless of population size we really don’t have a representative government, and therefore this talk of equilibrium is misplaced. I am willing to entertain that line of thought, but fully adopting it means that we would have to admit that we really do not have a representative democracy at all in the United States.
I think that the real answer here is for us, as a country, to ask what kind of government we want and to acknowledge that either we have it, and it, therefore, isn’t “The greatest democracy in the world” and own that or to realize that it doesn’t really work the way a lot of people think it does.
**I will note, I voted for George W. Bush in 2000 and at the time was pleased with the result of Bush v. Gore. I will note that I actually, naively it turns out, thought that the popular vote inversion would lead to EC reform (which I supported at the time). In retrospect, SCOTUS got it wrong in my view in Bush v. Gore but I would note that the fact that a SCOTUS case essentially decided the 2000 election should slay, once and for all, the notion that the Court isn’t “political.” Even if one thinks each member of the Court was acting wholly as philosopher-judges (a dubious assumption on any case) the results were decidedly political in nature and effect.
***At least 2000 was almost a tie–Gore won 543,895 more votes than did Bush (0.52%).
****Really, the test of all of this is to be found here. No Republican would be happy with a Democrat in the White House who lost the popular vote then being allowed to appoint a full third of the Court. Indeed, no Republican would like the idea of a Democrat winning the White House but having lost the popular vote by ~3 million. No Republican would have thought it just if RGB died when Bush was in office and a Democratically-controlled Senate held over the replacement until Obama was in office.
We all inherently know all of this is jacked-up if we allow ourselves to step out of the current moment.
*****Yes, there were “small” states and “large” states, but the ratios were closer than they are now–and the way we added states to the country as we expanded clearly changed the dynamic of representation in the chamber beyond its original design.