The past week has been pretty hard at the Supreme Court for some, and pretty great for others. If you’ve been on the winning side, whether on guns, abortion, prayer or all three, you may take the attitude, “We won, you lost, get over it.” And, perhaps, you would also argue that if the other side was able to stack the deck with its ideological loyalists, they would have done so in a flash and been just as pleased with being winners.
But what about the legitimacy of the Supreme Court?
“Legitimacy is for losers,” a political scientist once said. It’s a profound concept. The winning side in a decision will gladly accept it without asking why. But the losing side — whether the decision is made by a basketball referee or the Supreme Court — will accept defeat only if they believe the decision was made fairly and by the book.
That’s why the politicization of the U.S. Supreme Court is so alarming. People on the losing end of Supreme Court decisions increasingly feel that justice is not being served. That’s a scary situation for the high court, and for American democracy in general.
As the Least Dangerous Branch, the Supreme Court has always relied on its legitimacy as an impartial arbiter of the law to fulfill its role in our tripartite system of government. Over the past few years, it has been the target of constant attacks on its legitimacy by people like Linda Greenhouse in the Times, who dedicated column after to column for the past half decade to arguing that the Supreme Court was a vast right wing conspiracy, Then again, it’s not like Mitch McConnell didn’t do everything in his power to prove her correct.
For the losing side, the sting of the decision was made worse by the events that led to it. In 2016, Mitch McConnell, then the Senate majority leader, blocked a vote on President Barack Obama’s nomination of Merrick Garland to the Supreme Court, defending his action on the grounds that the nomination came just eight months before that year’s presidential election. But in 2020 McConnell hurried through President Donald Trump’s nomination of Amy Coney Barrett, with the final confirmation vote coming just a week before that year’s election. That got Republicans what they wanted but tore a hole in the fabric of democracy.
There are plenty of excuses and rationalizations for why this happened, who “did it first” and why the other side is worse, but the fact remains that it happened and was wrong, even if they got away with it.
“The Supreme Court has no power to enforce its decisions,” Daniel Epps, a law professor at Washington University in St. Louis, told me on Friday. “It doesn’t have an army. The only thing it has power to do is write PDFs and put them up on its website.”
All the Supreme Court really has to go on is the public’s acceptance of its rulings as legitimate. “Once you lose that, it’s not really clear what the stopping point is,” Epps said. “I see that as a fundamental threat to society.”
But here’s a question that that floats above this modern restatement of why the judiciary is least dangerous: Were there any circumstances under which either side would accept losing in this fundamental culture war cases?
The public mindset wasn’t a product of these rulings per se, even if it would have been under different circumstances. The undermining of the integrity of the Supreme Court, of its justices, has been going on for years. And for those who conveniently forget, justices like Gorsuch and Kavanaugh, and to a lesser extent Barrett, were already judges on circuit courts, as Alito was when he was plucked from the Third to take a seat at the Big Bench. Thomas wasn’t, but then he was picked to the fill the Marshall seat, maybe the most cynical appointment ever.
The point is that these weren’t random wild-eyed crazies being held in some secret Federalist Society safehouse, but circuit judges who were known and respected. They didn’t become reviled until their nominations for the Supreme Court, when suddenly qualified judges became right wingnuts and worse.
And before anyone else smugly points this out, it’s not as if Biden hasn’t made it his priority to select judges based on what used to be considered immutable characteristics, or that the group pushing their reliable warriors from the left, Demand Justice, isn’t as flagrant as possible in arguing that their judges will reliably do exactly as the woke demand. At least the Republicans had the courtesy to pretend otherwise. The Demand Justice nuts make no similar pretense.
Would that instill faith in the legitimacy of the Supreme Court, or be little different than what the Republicans stand accused of, gaming their position in the Senate to stack the Court with their partisan hacks? Of course, if the woke weren’t the losers but the winners, they wouldn’t care much about the Supreme Court’s legitimacy, as they’e been setting up for years knowing that the other tribe had the majority and they had to do anything possible to undermine the Court.
There is no one on the court today like Justice Anthony Kennedy, who, despite being a Republican appointee, was independent and often unpredictable in his jurisprudence, Epps said. Kennedy retired in 2018. “The screening is far more rigorous” now than when Kennedy joined the court in 1988, so a freethinker such as he would never get on the bench, Epps said.
There are some of us, naive though we may seem these days, who believe that the Supreme Court would best serve a nation and fulfill its function by justices who were both highly qualified and truly impartial, such that any litigant arguing a case before the Court believed that if done well, soundly reasoned and adequately supported by law and logic, they can win. But then, neither left nor right have any interest in such a justice, as that leaves them exposed to a potential loss. Neither is willing to suffer a loss if they can avoid it by gaming the system and stacking the deck in their favor.
But what about the Supreme Court’s legitimacy? Legitimacy is for losers. Nobody wants to be the loser.
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