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The Supreme Court Is Coming Apart

It’s not just the Kavanaugh mess. Over the long term, the court risks a crisis of legitimacy.

Sept. 23, 2018

The Supreme Court is an unusual institution, because it somehow manages to be both majestic and intimate.

The court is housed in a marble temple with soaring columns, and it has made some of the most consequential decisions in American history. But it feels like a simpler institution than either the presidency or Congress. Its arguments are not televised but are open to the public. Spectators are often surprised by the courtroom’s modest size. Outside the court, the nine justices tend to lead more normal day-to-day lives than senators, governors or other grandees.

This combination has long allowed the court to embody the American ideal of democratic government — powerful yet humble — and many people have revered it as a result.

But today the Supreme Court is in trouble. And the issues are much larger than the mess of Brett Kavanaugh’s confirmation. Absent some kind of course correction, the court risks a crisis of legitimacy.

There are two fundamental problems. The first is that the court has become an intensely partisan institution that pretends otherwise.

The founders envisioned the justices as legal sages, free from the political scrum. They receive lifetime appointments to protect their independence. The justices themselves cherish this image. John Roberts, the chief justice, has famously equated himself with an umpire who merely calls balls and strikes. The comparison is meant to suggest that justices don’t have their own opinions: They just follow the law.

But this is laughable. In almost every major decision last term — and many others over the past decade — the justices divided neatly along partisan lines. The five justices chosen by a Republican president voted one way, and the four chosen by a Democrat voted the other. If the justices are umpires, it sure is strange that Republican and Democratic umpires use vastly different strike zones.

This partisanship has turned each court vacancy into a pitched battle. It’s why Republican senators took the extreme step of denying Barack Obama the ability to fill a seat. It’s why the Kavanaugh fight feels so momentous. It’s why liberals care so much about Ruth Bader Ginsburg’s health.

And the biggest damage from the court’s partisanship doesn’t even come from the nasty confirmation battles. It comes from the fact that a major American institution defines itself in an evidently false way. Hypocrisy isn’t good for credibility.

The second major threat to the court comes from the radicalness of Republican-appointed justices.

It’s true that the Democratic-appointed justices are more reliably liberal than in the past. There are no more conservatives like Byron White (a John Kennedy appointee) or Felix Frankfurter (a Franklin Roosevelt appointee). But the court’s Democrats still range from moderate to progressive. Stephen Breyer is only somewhat to the left of White and well to the right of Sonia Sotomayor, academic analysis shows. Merrick Garland, Obama’s jilted nominee, was also a moderate.

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There are no more Republican moderates. With Anthony Kennedy gone, every Republican justice is on the far end of the spectrum — among the most conservative since World War II. Kavanaugh would almost certainly join them, as would any other Trump nominee.

Already, the Roberts court has often shown itself to be zealously activist. It has thrown out bipartisan legislation on voting rights and campaign finance. It has overruled decades-old precedents on labor unions, antitrust and criminal justice.

In the future, there is real reason to worry that the court will block government action on the two biggest threats to this country’s security and stability: climate change and stagnant middle-class living standards.

So what can be done about the court? There are no easy solutions.

Term limits for justices would be the best change. They would eliminate the high-stakes randomness of replacing justices and better connect the court to the long-term will of the people. With 18-year term limits, each four-year presidential term would automatically come with two appointments. Enacting this change is an enormous political lift, yet it’s worth trying.

A less palatable option is for Democrats to expand the court when they next control Washington. Given the outrage of the Garland nomination, Democrats are right to be thinking about this. But I hope they don’t have to resort to it, because it would risk a tit-for-tat battle that could do even more damage.

Finally, there is the possibility that Roberts comes to understand the peril to the court. He clearly cares about the court’s credibility, and he has shown flashes of judicial modesty, respecting both precedent and Congress. The biggest example was his split decision on Obamacare. More often, though, he has chosen radical activism.

Roberts is never going to turn into a liberal. But it is reasonable to hope that he will show more of the small-c conservatism that the Supreme Court needs. If he allows it to become an all-powerful version of Congress where the legislators happen to wear robes, both his legacy and the country will suffer.

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David Leonhardt is a former Washington bureau chief for the Times, and was the founding editor of The Upshot and head of The 2020 Project, on the future of the Times newsroom. He won the 2011 Pulitzer Prize for commentary, for columns on the financial crisis. @DLeonhardt • Facebook