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The counter-majoritarian difficulty

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For a couple of generations now, the reactionary right’s complaint about the Supreme Court has been that it supposedly imposes the anti-democratic preferences of a liberal elite on the American people as a whole.  You can probably guess where this is going:

Test your Supreme Court knowledge: In the entire history of the court, exactly one justice has been

a) nominated by a president who didn’t win the popular vote and

b) confirmed by a majority of senators who collectively won fewer votes in their last election than did the senators who voted against that justice’s confirmation.

Who was it? . . .

The answer is Neil Gorsuch.

Donald Trump won just under 46 percent of the popular vote and 2.8 million fewer votes than Hillary Clinton. And Mr. Gorsuch was confirmed by a vote of 54-45. According to Kevin McMahon of Trinity College, who wrote all this up this year in his paper “Will the Supreme Court Still ‘Seldom Stray Very Far’?: Regime Politics in a Polarized America,” the 54 senators who voted to elevate Mr. Gorsuch had received around 54 million votes, and the 45 senators who opposed him got more than 73 million. That’s 58 percent to 42 percent.

And if the Senate confirms Brett Kavanaugh soon, the vote is likely to fall along similar lines, meaning that we will soon have two Supreme Court justices who deserve to be called “minority-majority”: justices who are part of a five-vote majority on the bench but who were nominated and confirmed, respectively, by a president and a Senate who represent the will of a minority of the American people.

And consider this further point. Two more current members of the dominant conservative bloc, while nominated by presidents who did win the popular vote, were confirmed by senators who collectively won fewer popular votes than the senators who voted against them.

They are Clarence Thomas, who was confirmed in 1991 by 52 senators who won just 48 percent of the popular vote, and Samuel Alito, confirmed in 2006 by 58 senators who garnered, again, 48 percent of the vote.

And finally, ponder this. If fate were to hand President Trump one more opportunity to put a justice on the court before 2021, it would almost certainly again be a bitterly contested and close vote, and it would probably leave us with a majority of Supreme Court justices, five, who were confirmed by senators who received a minority share of the vote.

This sort of thing has never happened, by the way, with nominees advanced by Democratic presidents. First, no Democratic president has ever taken office after losing the popular vote. And second, justices nominated by Democrats have never been confirmed by such narrow margins. Of the four liberals currently on the court, all received 63 votes or more, from senators winning and representing clear majorities of their voters.

Tomasky actually understates his point somewhat, because George W. Bush nominated Samuel Alito, who as he notes was confirmed by senators who collectively received far fewer votes than the senators who voted against the nomination.  Yet Bush lost both the popular vote and Electoral College in 2000, and was only president in the first place because five Republican justices stole the election.  (Yes Alito was nominated during Bush’s second term, but Bush would never have been president at all if not for judicial highway robbery).

If Democrats take both houses of Congress and the presidency two years from now, we’re going to be right back to mid-1930s, when five reactionary SCOTUS justices did their best to shut down the New Deal.

This, more than anything else, is the reason the Federalist Society was brought into being: to hijack the federal judiciary, and use the federal courts’ (self-proclaimed) judicial supremacy over the electorally accountable branches of government to impose the political — and most specifically the economic — preferences of a reactionary oligarchy on the American people as a whole.

They’re almost there.

On the other hand:

The Supreme Court has always needed buy-in from the political branches to enforce its rulings. As my colleague Dahlia Lithwick wrote in 2016, the court “relies on us to believe that it’s magic. The power and legitimacy of the whole institution depend upon the idea that regardless of the political maelstrom surrounding it, the court is doing just fine and always will be.” Remarkably, throughout most of American history, this magic trick has worked. It came closest to collapse after 2000’s Bush v. Gore, when five Republican appointees justices indefensibly elevated their preferred candidate to the presidency. At that point, liberals could have declared war on the court, challenging the central role it had assumed in American politics.

An under-appreciated side effect of 9/11 is that it instantly became a form of treason to remind anyone that Bush the Lesser was a faux president, installed by a judicial coup.

Kavanaugh will drag the court far to the right, eroding Roemarriage equalitycampaign finance restrictionsvoting rightsaffirmative action, and the separation of church and state. Democrats’ respect for the court, already diminished, will plunge to new lows each time Kavanaugh casts the fifth vote in a controversial 5–4 ruling.

But most important is Kavanaugh’s image as both a partisan pugilist and an alleged sexual abuser. Democrats overwhelmingly believe Christine Blasey Ford’s accusation that Kavanaugh sexually assaulted her. They’re disgusted by the extensive reports of his allegedly boorish conduct throughout high school and college, including lewd sexual jokesheavy drinking, and alleged indecent exposure. And they’re convinced that Kavanaugh lied about this behavior under oath in his testimony last week—when, in an unprecedented display of partisanship, Kavanaugh lashed out against Democrats and the broader American left.

No matter how courteously Kavanaugh behaves on the court, many Democrats will always see him as the man who blamed “friends of the Clintons” for trying to thwart his confirmation. They will dismiss his votes as the product of political bias. It might not matter much at first: So long as Republicans maintain their grasp on power, they can enforce the court’s decisions through legislation, executive orders, and, if necessary, the National Guard.

But what happens when Democrats take back the legislative and executive branches? What if Democrats pass Medicare for All, and the Supreme Court strikes it down, with Kavanaugh casting the decisive fifth vote? It’s not hard to envision Democrats marching in the streets, demanding that the president and Congress ignore the ruling. And what if they do? What happens if the Department of Health and Human Services just … implements the law anyway? It’s easy to envision the presidential statement: As the chief executive, it is my duty to enact this legislation, passed through the democratic process, and to reject the illegitimate ruling of Donald Trump’s Supreme Court. The federal government, acting on orders of the president, opens enrollment, and Congress appropriates the funds as planned. What can the Supreme Court do? Send its tiny police force to storm the White House?

Hey we’re just asking questions here.

Speaking of questions, if Kavanaugh is confirmed and Democrats take the House, he needs to be impeached immediately.  Of course he won’t be removed by a Senate vote, but I more than suspect that an actual investigation of Brett Kavanaugh, by people with subpoena power, will uncover enough dirt to at a minimum delegitimize him even further, and it’s certainly within the realm of possibility that the revelations could be ugly enough to force him to resign.  In particular, I’m pretty confident that Kavanaugh’s finances are not going to withstand any serious scrutiny.

This guy is really dirty.  Whether or not he’s confirmed in the next few days, the battle against him needs to continue.

 

 

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