Gorsuch/Garland: Is the Supreme Court a “Majoritarian” Institution?

           The fact that it is Judge Gorsuch, rather than Judge Garland, for whom confirmation hearings are now underway prompts a return to the question of whether the Supreme Court is capable of doing little more than reflecting the preferences of political majorities.  

           Over the last decade, it became fashionable (first in the academy, then among journalists) to press the view that Supreme Court decisions cannot and do not stray far from the policy preferences of political majorities.  My friend and colleague Barry Friedman’s one-volume history of the Court, The Will of the People (2009), played a major role in re-invigorating this line of commentary about the Court.

           If you think the Gorsuch/Garland difference is likely to be a significant one for Court decisions, what does that suggest about where “the majoritarian thesis” goes awry?  Here, I want to suggest at least two places, which the current context helps illuminate.  The first is the role of historical contingency, in both politics and Court vacancies. 

The most likely mechanism through which the Court might be expected to reflect the views of political majorities is through the appointments process.  But since we do not have a structure through which Supreme Court vacancies occur at regularly recurring intervals, there is a great deal of randomness about how many appointments, if any, any particular President gets to make.  President Nixon, for example, made four appointments between 1969-1972, which shaped the Court for decades.  Yet there are Presidents in the modern era who have served one term without being able to make any appointments at all.  Jimmy Carter had none, and George W. Bush had none in his first four years.  Donald Trump, of course, entered office with a vacant seat awaiting him.  And since Justices are appointed younger and serve much longer these days, there is a great deal of luck involved as to whether even two-term Presidents can re-shape the Court in their image.  Up until 1970, a two-term President appointed nearly 5 Justices on average, or a majority of the Court; but since then, that figure has dropped to 2.7 Justices, on average.

 Politics and elections themselves, of course, are also highly contingent, as this fall’s election also should remind us.  Donald Trump won an electoral majority, but not a popular majority.  Even assuming a Justice he appoints reflects the substantive preferences of his electoral constituency, what does that tell us about whether that Justice’s positions reflect “the majority’s preferences”?  Beyond that, if the Democrats had found their way to a different candidate, would the outcome of the election have been the same?  Who knows?  And had Justice Scalia died three months earlier (or six) so that President Obama had filled the seat, matters would be very different for that reason as well.  The point is that when the country is so closely and sharply divided, small differences in politics and elections can be highly consequential, yet have enormous consequences for Court appointments.

The second reason to be skeptical about the idea that the Court is highly constrained to do little more than reflect the preferences of political majorities is that on many issues, the very idea of “the majority” is so nebulous as to make this claim hard to give content to.  Most of the “majoritarian” claims about the Court never tell us what majority the Court is supposedly reflecting.  Is it the political majorities in Congress, which in theory have power to respond to Court decisions (if government is not itself divided)?  Or is it the “popular majority” as reflected in something like national public-opinion surveys?  Indeed, a lot of recent political science research suggests that our political bodies do not even reflect the view of popular majorities. 

On some issues, people’s views are unsettled, fluid, and highly responsive to the way political elites – including the Court in its decisions – frame the issues.  So “the majority” sometimes follows the actions of public institutions, including the Court, rather than constrains or determines those actions. And because the country is so intensely, yet closely, divided on other issues, there simply is not any dominant majority by which the Court could be constrained.  The Court can make decisions in either direction and find support from some large, strong faction of the public who likes the outcomes.         

         In the wake of Citizens United, I wrote an article raising some of these challenges, which was titled Is the Supreme Court a “Majoritarian” Institution?  Justin Driver has written good critiques along similar lines.  Campaign finance is a good test of the claim that the Court is destined to do little more than reflect the views of “popular majorities.”  Do the Court’s campaign finance decisions, which strike down legislation enacted by national or state majorities, do that?  I don’t put a lot of stock in public-opinion polls, though it seems the “majoritarian thesis” requires us to do that; but those polls purportedly show large majorities that reject these decisions (that does not make these decisions right or wrong, as a legal matter, of course).  It’s not necessary, though, to go even that far.  The country might be deeply divided on campaign finance without a clear majority one way or the other.  The Court has a lot of room for freedom of action in this area, as in many others, regardless of what “public opinion” might be.

            Yes, it is true that Court decisions are inevitably affected by broad shifts in culture over time.  If there are clear majorities, sustained over long enough periods of time, the Court will come to reflect a dominant political sensibility of an era.  If you look at the Supreme Court from a 10,000 foot altitude, perhaps that is all you will see.  But historical contingency affects the Court, as it does all other institutions, and the current confirmation process provides a dramatic reminder of that.