The Supreme Court Is Begging For a Legitimacy Crisis

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The most generous appraisal of life in the Trump years actually dates from 1850, by a writer reflecting on Napoleon, a leader one imagines Donald Trump could readily admire: “There’s a certain satisfaction in coming down to the lowest ground of politics, for we get rid of cant and hypocrisy.”

Are we at the lowest ground? We are close, for sure. And it turns out Ralph Waldo Emerson was right: There is a certain satisfaction. The president may bend the truth and often break it — an average of more than 50 false or misleading claims a day, says The Washington Post —but in some essential ways he exhibits a lack of pretense that is surely a key element of his appeal to supporters.

It was Mitch McConnell who felt compelled to weave a web of hypocritical casuistry to explain why he pushed a vote to confirm Amy Coney Barrett to the Supreme Court days before a presidential election when in February 2016 he blocked President Barack Obama’s nomination of Merrick Garland on the grounds it was an election year. Trump, if not more honorable, was arguably less insulting when he stated the obvious: Republicans have the votes and there’s no principle at work other than we will do it because we can.

Here’s something Emerson neglected to remind us, however, about a brand of politics that is free of hypocrisy and cant: It is pretty damn frightening. At a minimum, we are now about to find out what it is like when the Supreme Court joins the rest of us on the low ground — liberated from the pretense that it is anything but another arena in the battle for power.

“How many divisions does the Pope have?” Joseph Stalin supposedly asked. The Supreme Court has the same number. Its power, like that of pontiffs, rests on mystique — on faith that its judgments are grounded in procedure, precedent and timeless principles. Mystique, in turn, inevitably requires a measure of artifice.

For a generation, the words and actions of the justices themselves — combined with an infusion of partisanship and ideological warfare into judicial appointments in which both parties are culpable but Republicans more so — have shredded the mystique on which the High Court rests.

It is likely that no pillar of institutional life in America will emerge from the Trump era — whether in January or in 2025 — more dangerously corroded than the judiciary. The Supreme Court is virtually begging for a legitimacy crisis.

The purely partisan Senate vote to elevate Barrett — combined with a 5-3 decision this week by the conservative majority ruling that legally cast mail ballots postmarked before Election Day won’t be counted if they arrive after Election Day — were twin provocations to most progressives. By themselves, however, they are just decisions with which many people will understandably disagree. To see them for the full outrages they are requires pulling the lens back historically.

After the 5-4 Supreme Court ruling in Bush v. Gore — in which Republican-appointed conservatives overrode their supposed preference for deferring to states and for narrow interpretations of their constitutional authority to order an end to vote-counting in Florida — Justice John Paul Stevens wrote a blistering dissent. He warned of the damage the majority had done to public confidence in the Court: “Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

At the time, that might have seemed a bit overwrought. Sure, people get hot in the moment, but then they cool down. Democrats had ash in their mouths but they quickly spit it out. The majesty of the Court was such that even Al Gore, while saying he disagreed with the decision, declared that he would accept it without reservation. He even expressed a wish that the election rancor might prompt Americans into a commitment to find “a new common ground” that, umm, hasn’t quite come to pass.

What would happen today in a Bush v. Gore, after two more decades of contempt-driven politics, in a country that just lived through a summer of often violent racial unrest? What’s more, what should happen? Is it self-evident that Americans should show solemn respect to a Court that decides, with clear ideological and partisan divisions among its members, that while it intervened in Florida to stop vote-counting with the presidency at stake, it has such respect for states that it won’t intervene in Wisconsin to ensure that legal votes are counted? Stevens was not overwrought; he was prescient.

The high-minded, tut-tutting view is that it would be terribly unfortunate if Democrats — were they to gain control of the Senate and the presidency — seek payback for McConnell’s gambit on Coney Barrett by increasing the size of the Court to offset the three justices named by Trump. The tut-tutters are no doubt responsible and right. On the other hand, by the dictates of Trump-McConnell logic Democrats should by all means stack the court to their advantage. There’s nothing in the Constitution that puts the number of justices at nine. As Trump non-hypocritically argues, if you have power you get to do what you want.

At the moment, America’s most appealing hypocrite is Chief Justice John Roberts. He was in a huff when President Barack Obama criticized the justices to their faces at the 2010 State of the Union after the Citizens United decision. Roberts in 2018 also scolded Trump for referring to Trump judges and Obama judges: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Very nice words. But what planet is Roberts on? No one who has watched the recent history of Supreme Court nominations or narrowly divided decisions could possibly believe what he said. Roberts knows this, and arguably is being hypocritical by denying the obvious truth — that the judiciary is infused with politics. Justices often time their retirements — alas they have displayed less precision in timing their deaths — so that presidents of a particular party can nominate their successors. Liberal and conservative justices don’t just disagree on technical matters of constitutional interpretation. These are harnessed to competing visions of society and government’s role in achieving them — just the same as in other political arenas. But in the legal arena the battle for power is supposed to be waged obliquely — within prescribed limits that are partly real but partly artifice. Trump’s violation was to abandon artifice.

But Roberts is one of the most interesting, and possibly consequential figures, in contemporary life because he has the courage of his hypocrisy. He is committed enough to preserving the institutional mystique of the Court as non-partisan arbiter that he has incurred the wrath of one-time conservative allies. He likely trimmed his own views and signed on to opinions that he doesn’t wholly believe on such questions as the Affordable Care Act to avoid letting the Court slip further into political flames. Although he signed on to the recent Wisconsin decision, he is probably praying that the vote there is not close enough for the decision on mail-in ballots to have any consequence.

Some progressive activists actually hope that Roberts will stop trying so hard to keep all the plates up in the air. Just let Trump’s and McConnell’s logic play out. A conservative Court will strike down Roe v. Wade and Obamacare — and then let the electoral backlash on behalf of progressives begin. But this course would come with real human consequences, not just political ones, and likely paid disproportionately by less-advantaged people without the ability to get health insurance or travel to states that allow abortion-rights.

When Roberts sermonizes about independent judges and a nonpartisan judiciary, he is demonstrating the old adage that hypocrisy is the tribute vice pays to virtue. He isn’t describing the reality of the judiciary as it is, or perhaps even as it will ever be, but he is describing an ideal that people should at least try to approximate. It is dangerous when a democracy lets go of hypocrisy altogether.

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