Since the Dobbs decision came down, I’ve heard a lot of liberals lamenting the Republican theft of the Supreme Court. As the story goes, Mitch McConnell stole the majority when he refused to give Merrick Garland so much as a hearing in 2016, holding the vacancy open until Donald Trump took office in 2017. McConnell’s justification was his deep commitment to small-d democracy: No seat should be filled in a presidential election year; the people should be given a chance to weigh in. In 2020, he lit that invented principle aflame when he rushed to confirm Amy Coney Barrett to replace Ruth Bader Ginsburg. The vote on Barrett took place eight days before Election Day.
McConnell gaslit the nation, but he didn’t steal any seats. Nothing he did was against the rules, which was why Democrats found themselves powerless to stop him. Liberals, in their anger, have too often ignored the logic of McConnell’s actions. He understood what too many have ignored: America’s age of norms is over. This is the age of power. And there’s a reason for that.
Let’s start here: The Supreme Court has changed. In the ’50s and ’60s, you would have had a hard time inferring a justice’s political background from his votes, as this analysis by Lee Epstein and Eric Posner shows. In the ’90s, Byron White, a Democratic appointee, had a more conservative voting record than all but two of the Republican-appointed justices — Antonin Scalia and William Rehnquist. John Paul Stevens, an anchor of the court’s liberal wing until his retirement in 2010, was appointed by Gerald Ford, a Republican.
But this record of independence was understood, by the parties that produced it, as a record of failure. The vetting process by which nominees are chosen was revamped to all but guarantee ideological predictability. In recent years, “justices have hardly ever voted against the ideology of the president who appointed them,” Epstein and Posner find.
I am, to put it mildly, obsessed with the way ideological polarization is colliding with America’s peculiar political institutions. I wrote a whole book about it. Our political system is not designed for political parties this different, and this antagonistic. It wasn’t designed for political parties at all. The three branches of our system were intended to check each other through competition. Instead, parties compete and cooperate across branches, and power in one can be used to build power in another — as McConnell well understood.
The Supreme Court is a strange institution — the final word on the law, but with no way to enforce its decisions; clearly political, but supposed to stand above politics; composed of nine bickering individuals, but posing as the impartial voice of the Constitution — and we have papered over its peculiarities with traditions of continuity and restraint. We ask senators to judge nominees by their qualifications, not their ideas. We ask justices to uphold past decisions they believe are wrong, even immoral. At least, we did. In recent years, the political importance of the court has overwhelmed the norms that (somewhat) insulated it from politics.
As I wrote in my book, “There is perhaps no single vote members of the U.S. Senate take with as much long-term ideological importance than that of a lifetime appointment to the Supreme Court, and asking them to keep that vote, and that vote alone, separate from the ideological promises they make to their voters, and to themselves, is bizarre.” The old norm worked when party conflict was mild enough to create a court that felt, and perhaps was, largely nonpartisan. But those days are long gone.
Making matters worse is that the Supreme Court has gone from being undemocratic to being anti-democratic. Lifetime appointments are iffy under the best of circumstances, but the vagaries of retirements and deaths have given Republicans a control that makes a mockery of the public will. Five of the court’s six Republican justices were appointed by presidents who initially took office after losing the popular vote (and, in the case of George W. Bush, after a direct intercession by five of the court’s conservatives in Bush v. Gore). Donald Trump was able to make more appointments in one term than Barack Obama was able to make in two.
You might think that the minoritarian nature of this Supreme Court would produce a restrained majority, one fearful of falling too far afoul of public opinion. It has not. To read the flurry of decisions and concurrences and dissents in Dobbs is to read less about abortion and rights than you might expect. Much of the text is a debate over the legal principle of stare decisis, which directs the court to respect precedent when making decisions.
Stare decisis helps solve a particular problem for the Supreme Court, which must prove itself an institution operating across time, not simply an amalgamation of nine voices at any given moment. When it resists the impulse to overturn past decisions, the court builds in a continuity beyond what the opinions of its members would offer.
Roe was already revisited, in the 1992 Casey decision, and left mostly standing. Under the norms that have governed the court for decades, Roe should have been safe, not because the majority agrees with it today, but because the Supreme Court does not upend settled law based on what the majority believes today.
This is the subject of Chief Justice John Roberts’s disappointed concurrence. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis.” The dissent of the liberals thrums with even deeper anger: “Here, more than anywhere, the court needs to apply the law — particularly the law of stare decisis.”
But stare decisis, as the justices know far better than I do, is not a law. And so, in his majority opinion, Samuel Alito brushes it aside. “It is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach,” 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 about the public’s reaction to our work.”
The argument Alito makes throughout his opinion is simple: The court can err. When it has erred, it must correct itself. Make all the fancy arguments about stare decisis you want, but if a decision is wrong, then it’s wrong, and it must be revisited. To take his perspective for a moment: There is something maddening about being appointed to a seat on the land’s highest court but told to leave standing the decisions you and four of your colleagues consider most noxious.
On some level, he is right. Stare decisis makes little sense. The problem is that, without it, the Supreme Court itself makes even less sense. It is just nine costumed political appointees looking for the votes they need to get the outcomes they want. And the further we travel down that road, the more the mystique that sustains the court dissolves. There is no rule, really, that the Supreme Court must be obeyed as the final word in constitutional interpretation — that, too, is a norm, and one that the court has no power to enforce. If all the Supreme Court is left with are the rules, soon enough there will be no Supreme Court to speak of.
So what would it look like to rebuild the rules and norms of the Supreme Court so they made sense in a polarized era — so that it could be an institution that moderated our political conflicts, rather than worsening them? It got little notice, but there was, recently, a thorough and important effort to think through that question. It will be the subject of next week’s column.
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