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The legitimacy of the US Supreme Court put to the test of its conservatism

Donald Trump supporters demonstrate outside the Supreme Court in Washington, D.C. on November 14, 2020. Olivier Douliery/AFP

The outcome of the 2020 US presidential election is no longer in doubt: Joe Biden and Kamala Harris won, taking 306 Electoral College votes, well above the 270-vote threshold – ironically, the same number that Donald Trump himself received in 2016 when he beat Hillary Clinton. The Electoral College confirmed Biden’s victory on December 14, and he will be inaugurated on January 20 at noon.

For the Democratic Party and its supporters, however, the much-hoped-for “blue wave” did not materialize. No matter how the last votes are to be counted (and recounted), the 2020 election was not an anti-Republican referendum. Indeed, this reality may be decisive in how the conservative majority on the Supreme Court chooses to decide contentious election litigation and establish its legitimacy as an objective judiciary, independent of the partisan agenda of any politician.

Conservative isn’t a synonym for corrupt

Just a little over a week before Election Day, in a 51-48 split, the Senate voted to confirm Amy Coney Barret’s nomination to the Supreme Court, replacing Justice Ruth Bader Ginsberg just five weeks after her death. Trump’s three Supreme Court appointments, all during his single presidential term, are not exceptional, though no president has done so since Ronald Reagan (and Richard Nixon before him), but they raise questions concerning the court’s supposed apolitical nature.

The conservative dominance of the Supreme Court is no longer an opinion, but rather confirmed fact. Since the emergence of the Federalist Society (started as a conservative student group at Yale) in 1982, conservative lawyers, legal scholars, and politicians have worked quietly and diligently to establish a network capable of influencing the American legal system. The cementing of the court’s conservative majority is less a short-order coup d'état than it is the long-anticipated maturing of organizational and institutional investments made over the past half century.

One nuance that many of the calls for expanding the court and eliminating lifetime tenure for justices fail to acknowledge is that a conservative court does not necessarily equate to a corrupt court. Unlike in the Executive and Legislative branches of government, in the Judiciary, political ideology (which has not always been the inerrant indicator of party identification that it is today) works differently. Partisanship, for elected officials is a powerful and oftentimes useful tool.

Still, the strongest indicator of vote choice, partisanship gets politicians in office and keeps them there. In the electoral process, political party platforms help voters to translate their values, convictions, and preferences into articulate policy positions, which are then pursued by politicians wishing to remain in office. Representing constituents’ (often partisan) policy preferences in office is an essential part of the job. In the Judiciary, however, the American common law legal tradition offers no formal structural role for political parties. As Amy Coney Barret has reiterated throughout her confirmation hearing, stare decisis means that Justices are bound by precedent in their rulings. A conservative court does not mean a Republican court, the influence of ideology in the courtroom is different, by design, to its influence in Congress or the presidency.

The role of ideology on the court

Even if a conservative majority on the court does not mean the same thing as it would in the House or Senate, ideology certainly plays a role in the way Justices are scrutinized during their confirmation hearings, choose which cases to hear, and ultimately apply precedent to decide those cases.

The words of Senator Diane Feinstein (D-CA) during Barret’s initial confirmation hearing to the Seventh District Court of Appeals, saying “the dogma lives loudly in you”, referring to Barret’s strong Catholic faith as a potential ideological disqualification, were widely criticized as out of bounds and inappropriate. While Barret’s Catholic faith and orthodox position on abortion should not disqualify her to sit on the bench, under the No Religious Test clause (Article VI) of the Constitution, many note its seeming discordance with American public opinion as a majority of Americans do not wish to see Roe v. Wade overturned.

Since judges are so strongly tied to precedent, the most ostensible manifestations of ideology are the legal philosophies that can be articulated through the judicial framework. The judicial activism versus restraint dichotomy that fuels much current debate over the way Justices view their role on the bench and are identified ideologically, have not always been liberal or conservative-owned positions. In an article in the Texas Law Review, Jack M. Balkin notes that liberals and conservatives switched positions on judicial restraint and the role of the federal courts twice in the 20th century alone. If history, then, is a useful tool for understanding future trends, what may be conservative legal philosophy today may not be tomorrow.

Additionally, justices’ ideology does not remain fixed over time, rather it tends to evolve as they “grow” in office – the trend actually being toward the left (as Justices Kennedy and now Roberts have shown). While a long-term liberalizing trend perhaps brings little comfort to those who rightly note that Trump’s midnight appointments are unlikely to follow in Roberts’ moderate “third way”, hope may be found in the court’s need for legitimacy.

A never-ending need for legitimacy

Hamilton writes in Federalist 78 of “the natural feebleness of the judiciary”, in its constant jeopardy of being overpowered by the other branches. The court’s democratic deficit is both its greatest asset and gravest weakness: in order to have liberty, a nation must have a Judiciary independent of the constant evaluations of voters. Unlike the president or members of Congress, the judiciary must be free from the yoke of democratic accountability, otherwise judges would likely act as legislators representing the will of the voters (in hopes of retaining their office). Paradoxically, it is this very protection that becomes a liability, John Marshall was well aware of this in Marbury v. Madison: give into one’s partisan temptations (pushing through Federalist judges) and risk losing all legitimacy (when the President chooses not to heed the court’s rulings).

The same can be said of the court’s relationship to public opinion and was expertly articulated by 20th century constitutional law scholar Paul Freund:

“[The court] should never be influenced by the weather of the day but inevitably they will be influenced by the climate of the era.”

While justices are provided a shelter from the hailstorm of public opinion, total disregard (particularly on a suspected partisan basis) for the other branches of government and public opinion would threaten the lifeblood of the court, its legitimacy. The president might attempt to pack the court, as FDR threatened in the Judicial Procedures Reform Bill of 1937, and the public might decide to ignore Supreme Court rulings.

Despite Trump’s clear desire for the Supreme Court to tip the election in his favor (aided in large part by his newest appointee), Biden’s lead was large enough that it is highly unlikely that the Court will decide the race as it did in 2000. Whatever Trump’s future after leaving the White House, the new conservative majority will decide in the coming years not only which votes will be counted, but its future as a legitimate, independent, third branch of government. Rightly or wrongly, Trump’s success in securing a third appointment in four short years means that all eyes will be on the new conservative court.

This article was originally published in French

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