The Supreme Court’s New York decision is indicative of the high tide of litigation flowing against executive decisionmakers.
Ubiquitous now among opponents of Brett Kavanaugh’s appointment to the Supreme Court is that his confirmation, and the confirmation process, will harm the “legitimacy” of the Court. In this concern, however, liberals only continue to emote their disapproval of Kavanaugh’s appointment; existing evidence suggests the Supreme Court enjoys such a deep well of public support that few isolated events, even as publicized and bitter as the last two weeks, can shake public support for the institution. What ostensible liberal concern for the Court’s legitimacy is really about is the expected shift on the Court threatens their two-generation long grip on the Court, and so threatens its legitimacy in their eyes.
To be sure, it’s not at all inappropriate to worry about the Court’s legitimacy in the public’s mind. As Hamilton opined so long ago in Federalist 78, unlike the executive and legislative branches, courts have “neither force nor will, but only judgment,” and so the judiciary is the “least dangerous branch.”
Yet it is a fair question whether Hamilton’s prescience saw much beyond the antebellum Supreme Court. The century-long incorporation of most of the Bill of Rights against the states via the Fourteenth Amendment, as well as the fabrication of non-textual rights, the executive and legislative branches’ reflexive deference to Court decisions, plus the deep well of support the Court has among wide swaths of the public, has made the Court a powerful institution. So powerful, in fact, it might be more appropriate to ask, as have Washington University political scientists James Gibson and Michael Nelson, whether the U.S. Supreme Court can have too much legitimacy.
Regardless of the answer to this normative question, there have been several bitterly contested confirmation battles in the last generation. We tend to forget now the bitterness of Justice Alito’s confirmation process. Despite the bitterness, however, Alito’s confirmation left little permanent impact on the Court’s legitimacy. Justice Thomas’s confirmation battle as well, similar in obvious ways to Kavanaugh’s confirmation fight, did not permanently dent the Court’s legitimacy. Nor did Robert Bork’s unsuccessful nomination fight before that.
This is not to suggest the Court can forever take sustained hits with no impact at all on its legitimacy. Indeed, in their study of Alito’s confirmation, political scientists James Gibson and Greg Caldeira suggest the Court’s legitimacy can decrease when people perceive it as just another political institution.
As in the case of Thomas, however, questions about the personal behavior of nominees outside of the courtroom actually do not feed the narrative of a political Court.
If anything, the ironic result of the Democrats’ attack on Kavanaugh’s personal behavior while young might actually have crowded out attention to their earlier criticism of Kavanaugh being a partisan judge. The result is the Democrats’ focus on Kavanaugh’s personal life at the end of the confirmation process might very well leave the Court’s standing higher after his confirmation than it would have been if they kept sustained focus on his ostensible partisanship.
At any one time the Court’s “legitimacy” is a combination of its diffuse support – the public’s broad support for the institution in general – and support for the Court in response to a specific decision or event then at the front of the public’s mind.
The combination of both diffuse and specific support usually augers majority support for the Court at any one time.
In the nomination fight for Kavanaugh, for example, specific support for the nominee was split about even, which was low relative to net support for other nominees in recent decades. But not everyone’s support for the Court rises or falls based on every specific episode. The Court retains diffuse support even among many of those who oppose Kavanaugh’s appointment. Between those who support Kavanaugh in particular, and opponents who nonetheless continue to support the Court in general, the Court almost surely continues to hold a position of esteem in the eyes of everyday Americans.
There is no crisis of legitimacy for the Supreme Court among the American public as a whole. There is a crisis of legitimacy among liberal elites, however, particularly those engaged in law, public policy, and journalism. And understandably so. They have long believed the Supreme Court their exclusive preserve in the American separation-of-power system.
Since at least the “switch in time that saved nine,” liberals have romanticized the Court as their domain. Presidents and Congresses might come and go, but the Court was always theirs. Conservatives have invested tremendous energy to make the judicial branch reflect their views, and their success in the courts assaults the very core of liberal self-identity in America, and correspondingly undermines core liberal conceptions about the American political system.
For liberals, the fight over Kavanaugh was not simply about future Supreme Court decisions. It was, to them, about their ownership of the Supreme Court, something they had taken as an unquestioned birthright. This is why the fight over Kavanaugh was from the start so personal for liberals. Indeed, given what’s at stake, any of the potential nominees on President Trump’s short list would have received the same visceral opposition from liberals that Kavanaugh received. Losing control of the Court, even if meaning control is only up for grabs, is a political revolution in the establishment liberal mindset.
To be sure, whether Kavanaugh’s confirmation actually is the game changer that it could be depends wholly on Chief Justice Roberts, the new median vote on the Court. The mere possibility, however, threatens what liberal elites perceive as their birthright ownership of the judiciary. This is why this nomination was so personal to them, and this is why this confirmation threatens the legitimacy of the Court in their eyes. But “legitimacy” for them really only means continuation of the Court’s long-time central orientation around liberalism.