In a piece on the future of the Supreme Court as Washington gears up for a bruising battle over Justice Scalia’s replacement, New York Magazine‘s Jonathan Chait predicts that, if the parties can’t arrive at some sort of compromise on nominations to the Court, the institution’s very legitimacy will eventually wither away:
A world in which Supreme Court justices are appointed only when one party has both the White House and the needed votes in Congress would look very different from anything in modern history. Vacancies would be commonplace and potentially last for years. When a party does break the stalemate, it might have the chance to fill two, three, four seats at once. The Court’s standing as a prize to be won in the polls would further batter its sagging reputation as the final word on American law. How could the Court’s nonpolitical image survive when its orientation swings back and forth so quickly? And given that the Court can affect the outcome of elections directly (like it did in Bush v. Gore) or indirectly (by ruling on the legality of partisan redistricting schemes, laws designed to inhibit voting by marginal constituencies, campaign-finance regulations, or labor’s ability to organize politically), with every election, the stakes will rise and rise.
In some ways, Chait’s dire prognostication is probably premature—nomination fights have been intensely political for at least three decades, and as Kyle Kondik has noted in this magazine, there have been two instances since the Civil War when a sitting president has been unable to fill a Court vacancy. But Chait is right that the Supreme Court was designed to embody some kind of super-democratic consensus that would be more durable than temporary political majorities, and that escalating trench warfare over nominations threatens to puncture that image in the long run. So if we do ever get to a point where justices can only be confirmed when the same party holds both the White House and the Senate, the role and standing of the Third Branch will likely be called into question more aggressively than it is now.
Indeed, the prospects for the Court could be even more grim than Chait suggests. Polarization and congressional dysfunction are eroding the old system of judicial nominations (where near-consensus confirmation votes were common) but they are also, paradoxically, investing the Court with ever-more power. As Congress retreats from its traditional role as the “center of political life in the United States,” the Court is asked to declare the final answer to broad range of fundamentally political questions. The Congress’ failure to amend the Voting Rights Act, for example, led to an intensely controversial decision striking it down in 2013, and the justices’ belief that Congress would be unable to negotiate a fix to the Obamacare exchanges may have contributed to the Court’s decision to uphold the law in its entirety in King v. Burwell. Congressional dysfunction is part of the reason that modern Courts have invalidated laws (both state and federal) at a historically unprecedented rate, in what Francis Fukuyama calls the “judicialization” of the political system. When Congress—unpopular, gridlocked, and cowed by interest groups—declines or fails to act, or acts sloppily, the demand for an active judiciary increases.
In other words, its possible to imagine a scenario where the Court gradually hemorrhages legitimacy even as it accumulates more and more power. Highly politicized confirmation rituals would undermine the judiciary’s pretension to be a regal guardian of the nation’s founding ideals, immune from temporary political passions. Meanwhile, the same congressional gridlock that makes it so hard to confirm justices would thrust more political authority into the Court’s lap. This combination—rising power but declining legitimacy—would be dangerous for any institution, but it is especially dangerous for the judiciary, which, having “no influence over either the sword or the purse” (in Alexander Hamilton’s words), lacks the ability to enforce its will. It’s possible that this won’t be a problem—that people will passively accept the Court as a kind of de facto legislature. If something doesn’t give, however, there is a risk that the bubble will burst—that Americans decide that they are effectively ruled over by an illegitimate council of philosopher kings, and that they start openly defying its decisions.