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The countermajoritarian difficulties

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Supreme Court justices aren’t giving silly speeches asserting that their institution is entitled to a high and fixed level of normative legitimacy irrespective of what it does in a vacuum:

Americans’ opinions of the U.S. Supreme Court have worsened, with 40%, down from 49% in July, saying they approve of the job the high court is doing. This represents, by two percentage points, a new low in Gallup’s trend, which dates back to 2000. The poll was conducted shortly after the Supreme Court declined to block a controversial Texas abortion law. In August, the court similarly allowed college vaccine mandates to proceed and rejected a Biden administration attempt to extend a federal moratorium on evictions during the pandemic.

For decades Republicans have enjoyed the incredible gift of a Supreme Court that has had a right-wing median vote since 1970 (that has shifted ever-rightward) and yet is held in higher esteem by liberals than conservatives, to the extent that a presidential election fought with a vacant, potentially pivotal Supreme Court seat saw little mobilization around the Court by the former. The 2021 term is overwhelmingly likely to mark the highly postmature end of this; being beaten on the head repeatedly does concentrate the mind eventually.

The problem, of course, is that the barn is already four counties over. Judicial power is fragile, and if the US had a democratic national government otherwise the Court would have a huge fight on its hands that it would probably lose. Only we don’t have anything like a fully democratic national government, and currently the many countermajoritarian elements of American government are all conspiring to empower the same minority faction the Court currently represents. At least in the short and probably medium terms, the Court will be practically insulated from effectual backlash, which will only make it even worse. (The 2000 and 2016 elections are the two most consequential of my lifetime, and both were covered by the political press as if they had the stakes of a junior high student council election.)

I could write a book, but one of the stranger tendencies of legal scholarship is (or at least was) to treat the courts as the only major countermajoritarian institution in American government — “deviant,” in Bickel’s famous formulation. If this was true, the problem of an out-of-control Court would be quite easy to solve — but, tragically, it’s not. Ultimately, the Senate and Electoral College are even bigger problems, and indeed are the reason the a minority faction has an arrogantly commanding majority of Court in the first place.

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