“Government requires make-believe,” the Yale historian Edmund S. Morgan wrote in Inventing the People, his provocative 1988 history of Anglo-American political institutions. “Make believe that the king is divine, make believe that he can do no wrong or make believe that the voice of the people is the voice of God. Make believe that the people have a voice or make believe that the representatives of the people are the people.”
In the American system of constitutional government, where the justices of the Supreme Court have final authority on the most explosive political issues, one might add to Morgan’s list, “Make believe that the High Court embodies a super-democratic consensus capable of divining the Constitution’s true meaning.”
It’s not necessary for all or even most citizens to consistently endorse the make-believe propositions—or, to use a formulation less melodramatic than Morgan’s, the democratic norms and taboos—that underlie our political system. Almost half of Americans, for example, told Pew that they feel they have little or no influence over how they are governed. A strong majority believe that Supreme Court justices allow their personal political preferences to influence their decision-making. And yet our democracy hobbles along.
But even if people privately harbor doubts, the government’s legitimacy depends on the regular public affirmation of these sacred principles. Civics classes teach the idealized version of American democracy as a large-scale replica of a deliberative New England town meeting where everyone has equal say. Politicians give speeches exalting the wisdom of the American public and the sanctity of the Constitution. At confirmation hearings, judges solemnly promise to apply the law without regard for partisan differences or political pressure.
Over the last tumultuous year, America’s code of political etiquette has taken a beating on many fronts, including, needless to say, from a certain candidate’s presidential campaign. But one of the most interesting offenses came from Justice Ruth Bader Ginsburg, who was roundly criticized last week after giving a series of interviews in which she repeatedly attacked Donald Trump as if she were a Hillary Clinton campaign surrogate.
There has never been a shred of doubt, on the left or the right, as to Ginsburg’s partisan political preferences. However, her comments about Trump very publicly punctured one of the core “fictions” (another one of Morgan’s provocative but useful phrases) that our constitutional system depends on: That the nine men and women who occupy the regal courthouse across the street from the Capitol are mere Constitutional umpires unmoved by election-year give-and-take. It didn’t help that the Ginsburg controversy came at a time when this proposition was already under strain due to the Senate Republicans’ decision to play hardball on President Obama’s nomination for Justice Antonin Scalia’s recently-vacated seat.
After facing sustained pushback even from many liberal stalwarts, “The Notorious RBG” apologized and pledged to cease offering her opinions on the presidential race. In the short run, then, the make-believe can proceed, if uneasily. But in the long run, the episode highlights a much deeper threat to the Court’s place in America’s constitutional system.
There are two long-term pressures working to undermine the fiction of an apolitical Supreme Court. The first is elite polarization. The public is clustering along the left and the right, but the trend is even more pronounced among elites, leading judges and lawyers very much included. The fact that justices (and the kinds of people who might become justices) really are becoming more ideological makes it more likely that the public will perceive them as such.
The second is what Francis Fukuyama has called the “judicialization” of American government. The more dysfunctional Congress becomes (in part but not entirely because of polarization) the more major questions are thrust into the judiciary’s lap, and the larger it looms in American life. King v. Burwell (the second Obamacare case) only made it before the Court because Congress was sloppy in drafting the law and unable to clean it up. Shelby County v. Holder (the decision striking down the Voting Rights Act) only made it before the Court after the justices warned Congress to update the law in an earlier decision, and it couldn’t bring itself to do so. It’s easy to see how a polarized public asking an even more polarized Court to resolve an ever-greater number of crucial questions could lose faith in the institution’s super-democratic pretensions over time.
Given these trends, how has the taboo against open politicking by justices survived—and, relatedly, how has public confidence in the Court (relative to other governmental institutions) remained relatively high? Largely for the simple reason that the Court has always had a moderate median justice since polarization and judicialization started to kick in.
As the liberal law professor Scott Lemieux wrote in the New Republic earlier this month: “Since early in the Nixon administration, the median vote on the Court on the most politically salient issues has been a Republican, but a moderate, country-club Republican: Potter Stewart, Lewis Powell, Sandra Day O’Connor, and now Kennedy.” For decades, America has had a High Court that doles out enough victories to both sides so as to make the idealized version of the nonpartisan council of philosopher kings seem not too far removed from the reality. So long as the justices sometimes hold that the Constitution supports the moral vision of one party, and sometimes rule that it supports the moral vision of the other, it is possible for the public to suspend disbelief.
The Roberts Court, for example, despite its Republican majority and for all liberals’ howling, has sustained a right to abortion, upheld the Affordable Care Act, and found a universal right to same-sex marriage. On the other side, it has found a right to gun ownership, struck down Obamacare’s birth control mandate, and allowed a partial-birth abortion ban. Democratic and Republican opinions of the Court fluctuate wildly after each hot-button ruling, but each side can list a number of cases where the majority of justices ended up in their corner. And on politically polarized questions, there is usually some uncertainty as to how the Court will rule.
There is no guarantee that this pattern will persist. In fact, in all likelihood, it will not. Lemieux continued: “The relative moderation of the Roberts Court is likely the last gasp of the previous partisan order rather than a signal that it will continue. Depending on who wins the election in November, the Court can be expected to take a sharp turn to the left or to the right.” If, as is likely, Hillary Clinton wins and appoints Scalia’s replacement (assuming Senate Republicans haven’t already confirmed Merrick Garland in the lame duck period), the median vote will shift immediately from Anthony Kennedy, an unpredictable moderate, to one of the five consistent liberals. In event that Trump wins (and assuming he stands by the list of potential nominees he put out in May), Kennedy will remain the swing vote, pending the not-improbable departures of one of the elderly liberal justices, in which case the median vote will shift to Roberts—a strong and reliable conservative, despite his healthcare heresy.
It’s not impossible that by 2020, the Court will have a hardened six or even seven-member liberal (or conservative) block, with a median justice squarely in one of the two camps rather than floating between them. We may be approaching the end of a fragile compromise that held for decades even as tectonic plates shifted below the Court’s feet.
To be sure, America has had partisan Courts in the past. The Hughes Court (which initially invalidated much of Franklin Delano Roosevelt’s New Deal agenda) had a median justice well to the right of the political center. This did in fact provoke a miniature constitutional crisis, but it was resolved when the Court, sensing the risks of obstructing a united supermajority in the political branches, subtly grew more accommodating. Today, however negative partisanship has locked the parties into positions of rough parity. There is no guarantee that the conditions for this kind of epic about-face will be met again in the near future.
Justices’ views can and will evolve, and there will still be questions that split even a politically lopsided Court down the middle. But on the culture war issues that most inflame political passions—immigration, race, guns, abortion, free speech—there is often little doubt as to how liberal and conservative justices will rule. There is a risk that in the coming years, the Court will be transformed into a vehicle for validating and implementing the agenda of one of the two parties. Court-watchers no longer wait with baited-breath for the major opinions at the end of June, because they already know with virtual certainty which side will win.
Morgan argued that political institutions collapse when the make-believe assumptions required to sustain them become so manifestly at odds with reality that the “willing suspension of disbelief” can no longer continue. Ginsburg’s comments show that the fiction of a the non-partisan justice is fraying, but the looming ideological transformation of the Court threatens to vitiate it altogether.
Can the Court function without fiction? This would take us into genuinely uncharted territory. It’s possible that the party that doesn’t “hold” an overtly politicized Court will still honor its rulings on the purely rational grounds that it hopes that it will “capture” the institution in the future, and therefore wants it to retain legitimacy—much the same way opposition parties respect election results because they hope they will win the next one. But at a time when so many of the invisible norms and assumptions underlying our political system seem to be unraveling, this experiment does not sound particularly appealing.