Since the decision in the Dobbs case was taken, which ended up overthrowing abortion rights in the US, I have heard many progressives bemoan the theft of the Supreme Court by the Republicans. As the story goes, Mitch McConnell, leader of the Senate Republicans, stole the majority when he refused to give Merrick Garland a mere hearing in 2016, keeping the seat open until Donald Trump took over.
McConnell’s justification was his deep commitment to democracy with a small “d”: no vacancy should be filled in a presidential election year; the public should have a chance to have an opinion. In 2020, he burned that invented principle and rushed to confirm Amy Coney Barrett to replace Ruth Bader Ginsburg. Voting on Barrett’s nomination took place eight days before the election.
McConnell fooled the country, but he didn’t steal any seats. Nothing he did was against the rules, which is why Democrats were powerless to stop him. Angry progressives often ignored the logic of McConnell’s actions. He understood what many ignored: the age of norms is over in the United States. This is the age of power. And there’s a reason for that.
The Supreme Court has changed. In the 1950s and 1960s, it was difficult to infer a judge’s political record from his or her votes, as an analysis by Lee Epstein and Eric Posner shows. In the 1990s, Byron White, a Democratic nominee, had a more conservative voting record than all but two of the Republican-nominated judges — Antonin Scalia and William Rehnquist. John Paul Stevens, an anchor on the progressive wing of the courthouse until his retirement in 2010, was nominated by Gerald Ford, a Republican.
But this history of independence was understood, by the parties that produced it, as a history of failure. The vetting process by which nominees are chosen has been overhauled to ensure ideological predictability. In recent years, “judges almost never voted against the ideology of the president who appointed them,” conclude Epstein and Posner.
I am obsessed, to say the least, with the way ideological polarization is clashing with America’s peculiar political institutions. I wrote an entire book about it. Our political system is not designed for such different and antagonistic political parties. It was not designed for political parties. The three branches of our system aimed to control their respective performances through competition. Instead, parties compete and cooperate across branches, and the power of one can be used to increase the power of another — as McConnell rightly understood.
The Supreme Court is a strange institution — the final word on the law, but no means to enforce its decisions; clearly political, but supposedly above politics; composed of nine quarrelsome individuals, but posing as the impartial voice of the Constitution – and we have covered its peculiarities with traditions of continuity and moderation. We ask senators to judge nominees on their qualifications, not their ideas. We ask judges to endorse previous decisions that they consider wrong, even immoral. At least, we did. In recent years, the political importance of the court prevailed over the norms that isolated it (somewhat) from politics.
As I wrote in my book, “there is perhaps not a single vote that members of the US Senate hold as ideologically important in the long term as a lifetime appointment to the Supreme Court, and asking them to keep that vote, and only this one, apart from the ideological promises they make to their constituents and to themselves, is bizarre”.
The old norm worked when partisan conflict was moderate enough to create a court that looked, and perhaps was, largely non-partisan. But those days are long gone. To make matters worse, the Supreme Court has gone from democratic to undemocratic. Lifetime appointments are dubious under the best of circumstances, but the randomness of retirements and deaths has given Republicans a grip that mocks the public will. Five of the court’s six Republican judges were appointed by presidents who initially took office after losing the popular vote (and, in the case of George W. Bush, after the direct intercession of five of the court’s conservatives, in the case of Bush v. Gore). ). Trump has managed to make more appointments in one term than Barack Obama in two.
You might think that the minority nature of this court would produce a restrained majority, fearful of conflicts with public opinion. But not. The flurry of decisions, agreements and dissent in the Dobbs case has less to do with abortion and rights than one might expect. Much of the text discusses the legal principle of “stare decisis”, which guides the court to respect precedents when making decisions.
The “stare decisis” serves to resolve a specific problem for the Supreme Court, which must prove to be an institution that operates over time, not just an amalgamation of nine voices at any given time. When resisting the impulse to overturn old decisions, the court reinforces a continuity that goes beyond what the opinions of its members would offer. Roe vs. Wade has already been reviewed in the Casey decision in 1992 and for the most part upheld. Under the norms that have governed the court for decades, Roe should be safe, not because the majority agrees with her today, but because the Supreme Court does not overturn a law established on the basis of what the majority believes today.
This is the subject of the court president’s disappointed confirmation, John Roberts: “Surely, we must adhere closely here to the principles of judicial restraint, where the general path the court chooses entails repudiating a constitutional right that we not only previously recognized but also we expressly reaffirm, applying the doctrine of ‘stare decisis'”.
The progressives’ dissent vibrates with even deeper anger: “Here, more than anywhere else, the court needs to apply the law — particularly the law of ‘stare decisis’.”
But “stare decisis”, as judges know much better than I do, is not a law. And so, in his majority opinion, Samuel Alito repudiates it. “It is important for the public to realize that our decisions are based on principles, and we must make every effort to achieve this objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we have arrived at,” he wrote. “But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences, such as concern for the public’s reaction to our work.”
The argument that Alito makes throughout his opinion is simple: the court can err. When you make a mistake, you must correct yourself. Give all the elaborate arguments about stare decisis you want, but if a decision is wrong, it’s wrong, and it should be revised. Adopting his perspective for a moment: There’s something maddening about being nominated for a seat in the country’s highest court, but being told to stick to decisions that you and four of your colleagues find most harmful.
On one level, he’s right. The “stare decisis” makes little sense. The problem is that without it, the Supreme Court itself makes even less sense. It’s just nine costumed political nominees looking for the votes they need to get the results they want. And the further we go along this path, the more the mystique that sustains the court dissolves. There is no rule, in fact, that the Supreme Court must be obeyed as the last word in interpreting the Constitution — that too is a rule, and the court has no power to enforce it. If all that’s left for the Supreme Court are the rules, soon there won’t be a Supreme Court, properly speaking.
So what would it be like to rebuild the Supreme Court’s rules and norms so that they make sense in a polarized age — so that it can be an institution that moderates our political conflicts rather than accentuates them? Recently, there has been a large and important effort, which has received little attention, to reflect on this issue. It will be the subject of my next column.
