The Supreme Court is doing its job and winning public support. Some Democrats are despondent.
Last week, The Hill published an op-ed by by Democratic pollster Mark Mellman, lamenting the Supreme Court’s recent decisions on abortion rights, immigration, and workplace discrimination. Each of these cases resulted in what might be termed a liberal victory, in the sense that the outcome was in line with prevailing left-wing views in the United States. One might think of this as a cause for celebration among the Democratic establishment. But not for Mellman, who with a tinge of sadness concluded that “by refusing to inflame passions further, [Chief] Justice Roberts may stem the tide and accomplish the coveted goal of his GOP critics — preserving the Court’s current conservative majority.”
A second op-ed, also published in The Hill (on the same day, in fact!) took a more academic tone but made essentially the same point as Mellman. Law professors Kent Greenfield and Adam Winkler argued that the Chief Justice’s “moves to the middle will likely assist conservatives in the long run by dooming plans by Democrats the pack the Supreme Court with justices.”
Both articles expose the long game the Democrats have been playing with the Supreme Court since the failed Merrick Garland nomination in 2016. It is a game to punish Mitch McConnell and Donald Trump by radically restructuring the Court itself. And it is a game that has been undermined by the Court’s own decency and independence.
The Democrats’ plans, such as they were, all followed the same basic strategy. First, proponents of “court reform” would allege that the Court’s legitimacy is in decline. Next, they would assert that this drop in legitimacy is due to controversial decisions that do not reflect the popular will. Finally, they would conclude that the only way to rescue the Court from itself is to radically reshape its structure.
In the last two years, we have seen this plan put into action. Senator Sheldon Whitehouse and others submitted an amicus brief in January which directly questioned the Court’s legitimacy and threatened to pack the Court in response. Senator Whitehouse followed up this stunt by alleging in the Washington Post that the Court “has become just another arm of the GOP.” Senator Elizabeth Warren asked a question during the Trump impeachment trial which similarly attempted to sully the Court’s legitimacy. And Senator Kamala Harris accused the Trump Administration itself of “packing the Court” and announce that she would preemptively oppose any Trump judicial nominee.
As these examples suggest, establishing the erosion of the Supreme Court’s legitimacy is essential to the reform cause. As Greenfield and Winkler point out, Chief Justice John Roberts is keenly aware that legitimacy is the Supreme Court’s (and indeed, the entire Court system’s) main source of political power and influence. Unlike its sister branches of government, the judiciary famously lacks the purse or the sword. Without public legitimacy, the courts will struggle to secure funding, staffing, and basic resources, not to mention the willingness of both state and private actors to comply with their decisions. So if the Court’s legitimacy is falling — if its erosion does put the Court’s ability to perform its basic duties at risk — the Court itself must be fixed.
There is only one problem with the Democrats’ strategy: every underlying assumption is demonstrably false.
Take the argument about declining judicial legitimacy. Let’s leave to the side for a moment the fact that judicial legitimacy is a complex idea (with legal, sociological, and moral dimensions), and focus just on the broadest form to which the above-mentioned Senators plainly subscribe: legitimacy as general public support. Naked allegations that the Court lacks public support does not make it so, and in fact the Court’s public legitimacy remains quite high, especially in comparison to other public and private institutions. Indeed, in the September 2019 Gallup poll (the most recent I could find), the Supreme Court enjoyed an approval rating of 54 percent, its highest in nearly a decade. By contrast, in the same time frame only 39 percent of the public approved of the President, and only about 20 percent approved of Congress.
Nor is is true that the Court’s legitimacy has declined because of public outrage over its decisions or composition. Indeed, a recent New York Times article noted that “The Supreme Court Aligned with Public Opinion in Most Major Cases This Term”. Moreover, those decisions were not simply 5-4 (or 6-3) splits along predictable ideological lines. SCOTUSBlog reports that two-thirds of this Term’s decisions commanded a majority of at least seven justices, while only 21 percent were 5-4 decisions. And this has long been the norm: since 2010, 48 percent of Supreme Court decisions have been unanimous, while only 20 percent were decided by a single vote.
Even the most ideologically diverse justices agree on case outcomes more frequently than not. This Term alone, for example, Justices Alito and Breyer agreed 55 percent of the time, Justices Sotomayor and Kavanaugh 66 percent of the time, and Justices Kagan and Gorsuch 68 percent of the time. Even Justices Thomas and Ginsburg — who are widely considered to occupy the opposite ends of the ideologiocal spectrum — agreed on the outcome in 50 percent of the cases the Court decided. (All statistics courtesy of SCOTUSBlog’s Final Stat Pack.)
All in all, it turns out that the Supreme Court is working pretty well. While the Justices each bring their own experience and ideology to cases, the Court is hardly balkanized, and in no need of radical structural changes. No wonder the public has no taste for reform.
Democrats and their sympathizers know this all too well. Their years-long effort to paint the Court as a dysfunctional bastion of Trumpism has utterly failed. Indeed, the Democrats themselves have been exposed as the cynics who are trying to convert the Court into a political tool of their liking. This is not news for anyone who has been paying attention for the last couple of years. But it is noteworthy that it is being admitted so publicly.
The Interdependent Third Branch 