Anthony Kennedy’s retirement from the Supreme Court will allow President Trump to fill the vacancy with someone selected from a list of hardline conservatives hand-picked by the Federalist Society and ensure a reliable five votes for conservative causes for decades to come. Reproductive freedom guaranteed under Roe v. Wade could be scaled back or eliminated, a right to carry firearms imposed nationwide under an expansive interpretation of the Second Amendment, the right of labor to organize further eroded, and affirmative action declared invalid (as if to underscore this lattermost concern, the Justice Department announced new guidelines urging universities to avoid consideration of race in admissions). Mitch McConnell’s extraordinary gambit in refusing to allow a vote on President Obama’s nomination of Merrick Garland to the Court seems to have paid off. But the very hardball tactics used to move the Court to the right may undercut its most important asset: its popularity and moral authority.
Much of the influence of the Supreme Court—especially with respect to constitutional law—involves the soft power of persuasion. Of course, courts can invalidate legislation and order special remedies, but durable change requires the cooperation of other branches of government and, ultimately, the respect of the people. The Supreme Court is at its most potent when it can tap into and help shape a cultural zeitgeist, clarifying previously inchoate social norms and overcoming inertia in the popular branches of government. But to do this, the Court needs to be in sync with popular opinion while also appearing to be above ordinary politics. When it oversteps or misjudges the popular mood, its opinions meet with effective and sustained resistance.
Even some of the Supreme Court’s now universally celebrated cases, such as Brown v. Board of Education, have been lessons in what we might call cooperative constitutionalism and in the limitations of judicial power standing alone. After Brown, southern states famously resisted desegregation for roughly a decade. It took congressional action in the form of the Civil Rights Act of 1964—in particular the threat of the loss of Federal funding—to begin meaningful desegregation in the South. Even then, courts needed the help and cooperation of local school districts in devising and implementing workable desegregation remedies and ultimately the support of the local residents affected by them. Desegregation worked in the communities that eventually embraced it as a civic and moral obligation. It was circumvented and for all practical purposes repudiated in the many others that did not, which is why today’s public schools are more racially segregated than those in the late 1970s.
Similarly, the criminal justice reforms of the Warren Court did not, in the end, safeguard the rights of criminal defendants generally; instead popular resistance to what many believed was “revolving door justice” provoked a backlash in the form of draconian mandatory sentencing and inspired prosecutors to avoid heightened procedural safeguards through plea bargaining, which now accounts for over 90 percent of all criminal convictions.
And, of course, Roe v. Wade, which followed in the tradition of Warren Court jurisprudence, is the most obvious example of the limits of judicial power: the many communities that have refused to accept Roe have effectively repudiated it, both through unrelenting legal challenges that have slowly but surely whittled away at its guarantees, and by making it impractical for women to obtain even those abortions that still are constitutionally guaranteed. And these stymied efforts aren’t just the result of a court that habitually overreached. Indeed, far from the stereotype of the “activist court” dictating sweeping social and political change from the bench, in reality the Warren Court was typically more of a bellwether, anticipating changes in social attitudes that had already begun in popular culture and in state and local politics and nudging outliers into line with an emergent consensus. Tellingly, its most important opinions were almost all unanimous or near unanimous opinions of the Court. And even the ever-controversial opinion in Roe enjoyed a comfortable 7-2 majority.
The new Court will face a number of unprecedented threats to its reputation—and hence to its authority. While conservatives have gained control of the political system, liberals have by and large won the culture wars; as a consequence, the Supreme Court will be markedly out of step with the mood of most of the nation. Moreover, fair or not, the belligerence and overt bigotry of the current President will inevitably cast a shadow over his nominees and any Court shaped by them. In addition, the Senate’s treatment of President Obama’s nominee to the court, Merrick Garland, will reinforce the conviction among many that this Court is simply illegitimate. Finally, the inevitable 5-4 opinions of an ideologically polarized Roberts Court will reinforce the suspicion—already voiced by even eminent and respected conservatives, such as former 7th Circuit judge Richard Posner—that the Supreme Court is “a political court.”
As a result, instead of deference, the Court can expect widespread resistance, stoked by blistering dissents from the out-voted liberal Justices. The Court may strike down affirmative action in higher education, but it will not have the moral authority to make strict colorblindness a widely accepted norm. University students, faculty and alumni are committed to racial diversity and will work to find new ways to achieve it. For instance, already, many are taking a hard look at the standardized tests that disadvantage disproportionate numbers of black, Latino, and Native American applicants; the University of Chicago recently announced it would no longer require such tests and an anti-affirmative action ruling by the Court would doubtless inspire many others to follow. The Court can reverse Roe v. Wade and allow states to ban abortion, but, unlike in 1973 when Roe was decided, women today can end pregnancies in their early stages at home using increasingly common drugs and given the widespread conviction that women should have this option, it’s likely that those drugs will be readily and widely available, whatever the law.
Although some conservatives look forward to a speedy return to the jurisprudence of the pre-New Deal era, the next few years will be dangerous ones for the Court. Conservatives and liberals alike have much to lose if an aggressive right wing squanders the legitimacy that generations of prudent Supreme Court Justices built, as our current President has squandered the moral authority of the executive branch. The Court would be wise to avoid polarizing decisions and instead work to earn the respect it will need to shape any durable constitutional order.
[Update: This post has been edited for clarity after initial publication.]