Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Vicious Entrenchment Circle: Thoughts on a Lifetime with a Republican-Controlled Court
On May 15, 1969, Justice Fortas resigned from the Supreme Court, thereby ending a seven-year period in which a 5-4 majority of the sitting Justices had been appointed by Democratic Presidents. I had just turned eight years old. I’m now almost 58. And yet that day in May 1969 remains the last moment in time that a majority of the Court was appointed by Democrats. That’s right: By the time the Court’s current Term ends in June, it will have been more than 50 years of GOP-appointed control.
The appointment of Merrick Garland should have brought an end to that extraordinary streak. Retaining control of the Court, however, has become an article of Republican faith--hardly surprising when it's become a bulwark of theirs, a virtual background assumption, for fully half a century. And now, thanks to Mitch McConnell's deviousness, tactical brilliance and tenacity, it appears entirely possible that it might be another 50 years (or perhaps even longer) until we see another Democratic majority. A full century of Republican control is not hard to imagine. (And how’s this for a (related) factoid?: In only seven of the past 108 years (1946-1953) has the Chief Justice of the United States been a Democrat who did not fight on behalf of the Confederacy.)
It would be one thing, of course, if the Presidency and the Senate had been Republican-dominated for all of my adult life: In that case, such GOP dominance of the Court over many generations might be alarming (and frustrating), but would hardly be surprising. But Democratic Presidents have served five terms since 1969, and have won a majority or plurality of the popular vote in seven of the twelve elections in that period--including in six of the past seven elections. Democrats have also secured a majority of the Senate in more than half of the 25 Congresses since Fortas's resignation—including at least a couple of huge majorities. Yet nevertheless, the Court has remained, and will continue to remain, in GOP control for decades on end.
This stark contrast between electoral and judicial ratios is especially pronounced today. When Justice Kavanaugh takes the bench he will solidify a very strong, and unusually cohesive, five-Justice Republican majority, only one member of which (Justice Thomas) was appointed by a Republican President who entered office with a majority or plurality of the popular vote. Indeed, in that 27-year span, which covers the entire tenure of all of the current Justices, a Republican President has won the popular vote in just one election (2004, of course, which resulted in the Roberts and Alito appointments).
Moreover, two key Justices in this robust majority, Gorsuch and Kavanaugh, not only were appointed by a President who received almost three million votes fewer than his Democratic opponent--and who continued to have historically low disapproval ratings when he made the appointments--but their nominations were actually rejected by Senators representing strong majorities of the nation’s population. The Senators who confirmed Gorsuch, for example, represented states in which only 47 percent of Americans lived (based on the 2017 estimates, and splitting the population totals for the nine states (CO, FL, ME, MO, MT, NV, OH, PA, WI) in which the two Senators split their votes). The gap on Kavanaugh’s vote is even greater: Using estimated 2018 population figures—and not even counting the millions of Americans in the territories, including Puerto Rico—my rough calculation is that Kavanaugh was confirmed by the votes of Senators representing only 44 percent or so of the nation’s population (once again, splitting equally the population totals for the 13 states (AL, AK, CO, FL, IN, ME, MO, MT, ND, NV, OH, PA, WI) in which the two Senators split their votes) [I'm counting Sen. Daines as a "yes" vote and Sen. Murkowski as a "no."]
What’s more, because of our increasing partisan polarization and the corresponding battle lines that have been drawn in terms of jurisprudence, the solid conservative majority on the new Court will—perhaps for decades to come—be much more homogenous on the vast majority of closely contested and important questions than the pre-Roberts Court ever was. (After all, Justices Brennan and Souter were more liberal than the Presidents who appointed them, and Justices O'Connor and Kennedy occasionally voted with the "left" wing of the Court on a handful of high-profile issues, including abortion and gay rights.)
Of course the future is unwritten, and no one can say for certain. Even so, it's fairly safe to assume that the new Court will be far more aggressively conservative than any in (at least) the past 80 years.
The new majority will likely take significant steps, for instance, to sanction further Republican-enacted limits on the franchise; to bless efforts that skew the electoral system strongly in favor of Republican majorities; and to invalidate laws of other kinds (campaign finance regulations; agency fees; affirmative action initiatives; etc.) that tend, on the whole, to strengthen Democratic constituencies. In other words, we should expect to see plenty more decisions to add to an already imposing list that includes, e.g., Bush v. Gore; Crawford/Husted; Gill/Benisek, et al.; Citizens United/WRtL (and other campaign finance cases); Shelby County; Parents Involved; Janus; Epic/Concepcion, et al.; etc.
And then there are the many cases the Court majority will likely decide, invoking several different constitutional provisions and doctrines--the Free Speech Clause (especially); perhaps the Property and Contract Clauses; extra-textual federalism limits; limiting constructions of Congress’s post-Civil War enforcement powers; perhaps the Free Exercise Clause (and certainly RFRA); etc.—to narrow the scope of constitutionally permissible initiatives if and when the Democrats ever do again obtain majorities in the political branches.
The new five-Justice majority is also likely to dramatically enhance executive authority, in both foreign and domestic affairs, including by, inter alia, endorsing “unitary executive” theories (rejected by all but one of the Justices on even the Rehnquist Court) and statutory interpretations (see, e.g., the SG's aggressive brief in Lucia)that will constrict agency independence; perhaps re-asserting a more robust nondelegation doctrine; discounting the role of international law in construing the President’s war powers (see Justice Kavanaugh’s remarkable opinion in al Bihani, discussed here); applying extraordinary deference to the President in areas of foreign affairs, national security and immigration, even in cases (e.g., Trump v. Hawaii) where the presidential rationales are transparently pretextual.
In all of these ways, the Court will (probably) strengthen the ability of the Republican Party to entrench electoral power, and place obstacles in the way of future Democratic Presidents and legislatures to accomplish their desired substantive ends, despite the fact that the nation’s demographics and its electorate appear to be heading inexorably in the opposite direction.
[An aside, to anticipate the inevitable pushback: No, I am not asserting that these five Justices will, more than others, decide cases on purely “partisan” grounds (e.g., by asking themselves “Will it Benefit the GOP?”). That overly simplistic account is (mostly) not the way these things work. Indeed, I agree with Justice Kagan that the Justices' votes are not "simply an extension of the terribly polarized political process." I assume they sincerely believe that their decisions do, in an important sense, reflect the better view of the law as they see it, at least in most cases (but perhaps not all—see, e.g., Janus). Like most of us, however—and certainly like, say, the FDR appointees who dominated the Court beginning in 1937—their views of how the nation is best governed powerfully influence their views of how the Constitution and laws are best understood. And, as it happens, there’s a stark contrast between the two parties these days on most important questions of governance, with virtually no overlap (i.e., the most conservative Democrat is not as conservative as the most liberal Republican, etc.). Moreover—and here’s the important point—the Presidents and Senates who choose Supreme Court Justices can now be very confident about which jurists share their views about how the nation should be governed (by which I mean much more than “which party should win elections?”) and, more specifically, about how the Constitution and laws ought to be interpreted . . . and they choose their nominees accordingly. Although I know others might differ on this score, I don’t think there’s anything necessarily unprincipled or nefarious about this—it’s simply that it’s become much easier for prevailing actors in the political branches to guarantee that the Justices they choose will share their own principles, especially about how best to interpret the law.]
The remarkable thing about this imminent conservative dominance on the Court is that, unlike the post-New-Deal Court, the new majority will likely accomplish all of this, and more, despite the absence of any sustained partisan electoral dominance by their party--indeed, in the midst of a long stretch in which we have, at most, a so-called “50/50 nation.” (And that’s being generous to the GOP.)
Don’t get me wrong: I am most surely not saying that the Court ought to abjure its important countermajoritarian function, let alone “follow th’ iliction returns.” I’m simply pointing out that there’s been an extraordinarily stark and prolonged mismatch between (on the one hand) Democrats’ political power and the embrace of Democratic positions by strong majorities of the nation, and (on the other hand) Republican dominance on the Court—leading to a possible forthcoming ultra-conservative era of jurisprudence. And that there’s a strong--and not coincidental--symbiosis between the Republicans’ long-term, successful efforts to shape the Court and the ability of the GOP to secure success in the political arena beyond what its popular support would naturally produce: the entrenchments are mutually reinforcing.
Of course, whether and to what extent you think this is a serious problem (a vicious circle, of sorts) likely depends on where you sit. Feature/bug and all that.
* * * *
If I’m right about all this, it naturally raises two other important questions: What are the causes of the phenomenon, of the radical disjuncture, and what (if anything) can and should we do about it?
As for the former, I don’t have anything especially incisive to add to what you probably already know. I assume that the perpetual entrenchment is the result of the confluence of a whole host of things—a witch’s brew that includes at least the following:
-- The indefensibly unrepresentative Senate, of course—something that (technically) could only be remedied by a constitutional revolution of sorts.
-- Choosing the President based upon electoral votes, especially given that the electoral college itself is unjustly skewed by the “equal number of Senators” problem. (This could be remedied by an interstate compact or constitutional amendment, but if there’s no powerful impulse among the electorate to make such changes now, even after 2000 and 2016, I doubt there ever will be.)
-- The fact that state legislatures are in charge of drawing federal districts and that they do so on the basis of baldly partisan considerations that are widely understood to be flatly impermissible in countless other constitutional contexts.
[These first three causes are, of course, serious defects in the Constitution itself—provisions that would never be adopted today if anyone were sitting down to draft a constitution for such a modern, complex state, but that easily withstand any changes because of steadfast resistance from countless officials and interests who benefit from well-established institutional “settlements.”]
-- The decisions of some Justices not to retire while Democrats are in the White House.
-- Numerous aspects of the Court’s own jurisprudence, often (but not always) by 5-4 votes (see the cases listed above).
-- Geographic segmentation. See this acute observation from Mike Dorf (with his permission): “For my money, both the baked-in countermajoritarian features of our system (especially the Senate) and the contingent ones (especially partisan gerrymandering in the House) do the damage they do chiefly because of the socio-political context in which we live. We happen to have the bad luck to live in a country in which the geographic distribution of social conservatives, racists, and tolerators of racism gives them disproportionate political power. Worse, the institutional structures we have also give those people an effective veto over changing that disproportionate power.”
-- Perhaps Putin, and those in his employ and in his thrall, although I haven’t yet seen conclusive evidence that the Russian efforts (unlike, say, Comey’s indefensible actions) changed the outcome of the election.
I’ll leave it to others to assess the relative importance of these and other sources of the “State of the Court” (and the Nation).
Suffice it for me to offer but one prediction in this regard: When our grandchildren look back fifty years from now, in 2068, they might well find that the three individuals who have had the greatest impact on the development of American law, including constitutional law, over the course of the Twenty-first Century, will turn out to have been Mitch McConnell, Jim Comey and Theresa LePore.
Finally, as for the all-important “So what can we do about it now?” question . . . well, my guess is as good as yours (at best!). I hope my fellow bloggers, here at Balkinization and elsewhere, will weigh in with some (modestly) hopeful speculations for the future. For starters, check out the "Way Forward" section of Jack's latest post [UPDATE: and Mike Dorf's excellent follow-up here].