RBG’s death portends a legitimacy crisis for the United States Supreme Court

Four of the five conservative justices on today’s Supreme Court were nominated by presidents who lost the popular vote. Three of them were confirmed by senators who represent less than half the population. Soon, in all likelihood, both numbers will increase by one — meaning a majority of Supreme Court justices will have been appointed by presidents without a popular mandate and confirmed by senators representing a minority of Americans.

That Supreme Court may be called upon to decide dispositive legal questions in the upcoming presidential election. President Donald Trump was elected with 3 million fewer votes than his opponent, yet the justice he nominates may well cast the deciding vote in a case that chooses the next election’s winner. If that winner is Trump, and Republicans retain the same Senate majority they have now, all branches of government aside from the House will be controlled by individuals and parties that represent the views of a minority of Americans. Given Census hijinks and the perpetual threat of partisan gerrymandering, the House could well be next.

Thus, the battle over the replacement for Justice Ruth Bader Ginsburg couldn’t have come at a worse time. Not because of Ginsburg’s particular jurisprudential view, nor the jurisprudential view of the justice who will replace her. Rather, because a specter haunting American democracy with growing force for much of the early 21st century will now almost certainly shine its sickly green light on the Supreme Court.

The specter of illegitimacy.

2 Legit 2 Quit?

There are a multitude of reasons to fear Ginsburg’s death could spark an extraordinary legitimacy crisis at the Supreme Court. And while it’s not quite yet a fait accompli, the kind of thoughtful restraint and long-term approach to government and society that would be necessary to avoid it is hard to picture in today’s Washington.

Of course, the stage has been set for decades. Bush v. Gore cemented in many minds still part of the electorate the idea that Supreme Court justices are just politicians in robes. In the 20 years since, government institutions worldwide have suffered credibility blow after credibility blow — economic trauma, culture wars, media silos, and the growth of wealth disparities reminiscent of Imperial Europe have all undermined the idea that democratically elected governments and institutions effectively represent the will of the governed.

In 2016, this percolating dissatisfaction led, among other world events, to the United States electing an expressly anti-institutional president. Ensconced in office, Trump has made no apology for his frequent attacks on the impartiality and competence of judges and courts, or the legitimacy of elections.

That same year also, of course, saw the Republican-led Senate refuse to hold a vote on President Barack Obama’s nomination of Merrick Garland to the Supreme Court seat vacated by Antonin Scalia’s death, under the refrain that justices shouldn’t be appointed in election years. After Trump took office, the Senate then rapidly confirmed Justice Neil Gorsuch on a party-line vote. Justice Brett Kavanaugh’s confirmation hearings in 2018 were intensely bitter and led to another party-line confirmation, with only 50 senators voting to confirm.

Party-line votes for Supreme Court justices are, of course, historically anomalous. The filibuster long meant nominees had to have enough bipartisan appeal to gain support from at least some members of the other party. Justice Ginsburg, for example, received 96 confirmation votes; Justice Stephen Breyer received 87 and Chief Justice John Roberts, 78. The shortsighted elimination of the judicial filibuster by Democrats for lower court judges in 2013, and its predictable extension to Supreme Court justices by Republicans in 2017, now allows a president whose party controls the Senate to appoint politically extreme justices and judges without consensus support. Of course, that doesn’t mean the nominees are bad or incompetent, but with fewer reasons to carefully vet appointees, the practice does nothing to persuade the public that federal judges are legitimate, agreed-upon interpreters of the Constitution and laws who merely call balls and strikes.

Aside from the more recent trends that have eaten away at the Supreme Court’s legitimacy, the institution’s longer-term structural characteristics have not all aged well. Life tenure is an effective way to ensure judges don’t suffer from political pressure, but the growth of life expectancy has led to distortions in the appointment process.

For most of the 19th and 20th centuries, the average tenure for a Supreme Court justice was between 10 and 15 years. But beginning around 1970, the average tenure for Supreme Court Justices jumped to more than 25 years. And with predicted trends in longevity, life tenure will likely mean average terms of 35 years for justices appointed today. Given the perverse incentives that encourage the nomination of justices as young as possible to maximize their time on the court — often now candidates must be in their mid-40s to even receive serious consideration — some justices may well serve longer.

Aside from eliminating many terrific potential justices from consideration, the length of the justices’ tenure has led to grotesque focus on their health and death. Members of the public mailed kale to Ginsburg in 2017 when she had a cancer scare, and the most powerful nation on Earth is now forced to drop everything and unexpectedly engage in a pitched political contest because it seems the kale didn’t work. That is a strange practice for a mature democracy.

The framers never meant to embed Supreme Court appointees for an entire generation; their focus with life tenure was on protecting independence, not individuals. The court is a fundamentally undemocratic branch, but the further the court’s members are from democracy, the less popular legitimacy their decisions may be seen to have.

Thus, the Supreme Court’s institutional legitimacy has been under pressure for some time due to the political and scientific trends of the early 21st century. Ginsburg’s death magnifies that pressure at a critical time.

Skepticism for the Short Term

Are there solutions, or is the Supreme Court destined to side ever further into an insulated gerontocracy viewed with as much partisan tribalism as the political branches? There are solutions — both in the immediate term and the longer term — but whether the political will exists to enact them is far from clear.

In the shorter term, focused on Justice Ginsburg’s replacement, the solution would lie in some measure of political restraint. America’s constitutional framework was never meant to be a pitched battle to the death at every moment between two diametric partisan identities. Indeed, the framers naively thought political parties would never really take hold in the United States. The system was thus designed for long-term compromise, horse-trading, and negotiation between its constituent members. Because political power is never centralized in one place for very long, strong incentives to plan for both the waxing and waning of power are built-in — even if the parties seem to have ignored those incentives in recent years.

Meaningful restraint would require the Senate not to act on Trump’s nomination until January. That’s a big if not impossible ask when the prize is the most conservative lock on the Constitution’s meaning in 70 years.

The Democrats do have some chits to bargain with. The most bandied-about is a “court packing” scheme to increase the size of the judiciary, including the Supreme Court, assuming Democrats win control of Congress and the presidency in November. Adding three justices for a President Joe Biden to appoint would certainly alter the court’s ideological balance.

But it would also require legislation, which Republicans would never agree to, meaning Democrats would find themselves in the position of carving a hole in the legislative filibuster. The idea seems to be a rule change that would remove the filibuster only from bills related to the size of the judiciary. But, of course, there’s absolutely no reason to think it would ultimately end there. As the judicial filibuster experience showed, cracking the door eventually tends to blow it all the way open.

That means such a move could eventually lead to the end of the legislative filibuster entirely. Republicans, when in power, could then dismantle Social Security and Medicare; Democrats could add single-payer health care and a Green New Deal; and each could undo the other’s work whenever in office. All bets would be off.

Even if a complete end to the legislative filibuster doesn’t come to pass, a tit-for-tat on court packing the next time Republicans have control seems almost a certainty. What would a 25-justice Supreme Court look like? We may find out.

Of course, whether the demise of the legislative filibuster (which has been a part of Senate practice for nearly 200 years) or a packed Supreme Court are actually a problem depends somewhat on perspective. For those who view the American Experiment as one in which immediate power is worth any long-term cost, then these might be positive changes. That perspective probably wouldn’t take issue with rushing through a Supreme Court confirmation in the final month before a divisive presidential election, either.

But for those who think American democracy should create legitimacy for the courts and elected officials, these changes are deeply problematic.

If enough senators with a longer-term, stability-focused viewpoint still exist in Congress, they no doubt realize the wisdom of delaying a confirmation vote until January so both the Supreme Court and the presidential election can retain whatever legitimacy they still have. In exchange, Democrats would need to abandon plans to peel up a corner of the legislative filibuster or pack the Supreme Court.

There is, however, little reason to think enough of those senators exist. Four Republicans are needed, and only a couple so far have signaled a willingness to delay.

From an electoral perspective, that’s something of a surprise given how many swing-state Republican senators may risk energizing the opposition and putting themselves out of job. Surely, most of these senators would rather at least wait for the post-election lame duck congressional session to hold a confirmation vote; nothing would stop them from confirming whomever the president nominates then, no matter the electoral outcome.

But that would ill serve the president’s own goal of ensuring that what he perceives to be a friendly Supreme Court — one, he no doubt assumes, where a third of the justices owe him a favor — is in place to decide election-related lawsuits. And the president’s Twitter mob and army of supportive bots can be a persuasive motivator for any incumbent candidate who might consider stepping out of line.

Legislating Legitimacy

Wherever the short-term cards may land, in the longer term, restoring legitimacy to the Supreme Court will require reforms. Constitutional amendments are so difficult to pass in the United States that it’s virtually impossible to imagine one reaching as critical an institution as the Supreme Court, but fortunately, the Constitution largely gives Congress authority to set out how it functions by statute. As long Congress doesn’t dictate how the court will decide cases, it can not only change the number of justices and the types of cases the court hears, but other aspects of the court’s organization as well.

Presidential candidate Pete Buttigieg has pushed a plan he calls “5-5-5,” which would allow each of the two main political parties to select five Supreme Court justices, with a third set chosen by supposed neutrals. The plan would perhaps add a sense of balance to the Supreme Court, but it’s not clear how much legitimacy the court would gain, since the party-chosen justices would no doubt come from the furthest political extremes. It also raises constitutional questions centered on the entrenchment of parties.

A better plan is one that has been pressed by legal academics on both the right and the left since the early 2000s: 18-year term limits for Supreme Court justices. The idea is relatively elegant. The Constitution prevents any diminution in judicial pay during a lifetime appointment, but nothing says a federal judge or justice has to actually hear cases. Thus, Congress could pass a law permitting appointed justices to hear cases for 18 years only as an “active” justice. At that point, they would become “senior” justices, and the president would then nominate a new justice for Senate confirmation. The bench of active justices that would hear and decide cases would be made up of the nine most recently appointed.

That approach would essentially guarantee each president could appoint two justices per term, at regular and predictable intervals. The justices would remain in power for a long time, well insulated from political pressure, but not for an entire generation, which hopefully would lessen the apocalyptic intensity of each nomination battle. As a bonus, in a situation where an active justice is unable to hear a case due to illness, death, or recusal, justices from the senior bench could fill in the gaps, avoiding 8-8 ties until the absent justice returns or a new justice can be confirmed.

The 18-year term limit approach would seem to do a better job of restoring legitimacy through predictability and engagement with democratic processes than the 5-5-5 plan, with some added bonuses thrown in. Plus, it’s bipartisan, can be accomplished by statute, and doesn’t really alter the balance of power between any of the branches in dramatic ways.

Hopefully, cooler heads with America’s long-term interests at heart still play some kind of role in Congress. The parties have an abiding interest in protecting the Supreme Court from a decline into illegitimacy, especially as they have pushed closer and closer to one another’s throats in the political sphere. Whether through politicians’ unlikely restraint, 18-year term limit reforms, or otherwise, to effectively provide the stability and predictability that American law so desperately needs, the Supreme Court must retain its legitimacy as the nation’s final arbiter. 