The Next Supreme Court Won’t Reflect Public Opinion

(Bloomberg Opinion) -- Now that President Donald Trump has the opportunity to name a successor to Justice Anthony Kennedy, it’s worth remembering that there’s been a conservative majority on the Supreme Court for decades, and a very conservative one since Chief Justice John Roberts and Justice Sam Alito were confirmed more than a dozen years ago. Soon there is likely to be an extremely conservative majority. 

Indeed, the judiciary will become the most conservative branch of the U.S. government, regardless of the results of the 2018 midterms and even the 2020 presidential election. Most significantly, the courts will be far more conservative than overall public opinion. The political scientist Rick Hasen recently sketched out what another Trump nominee would mean for voting rights and for civil rights in general. For those who support the status quo (let alone more vigorous constitutional protections) on the many issues involved, the announcement Wednesday that Kennedy, the swing vote on the high court, would retire is very bad news.

Related coverage of Kennedy’s retirement
Feldman: Justice Kennedy’s Legacy Is the Dignity He Bestowed
Carter: The Fight to Replace Kennedy Has Already Begun

The dominance of conservatives is partly the result of when vacancies appeared. It also has to do with the audacious game of constitutional hardball by Senate Republicans when they refused to consider any possible nominee for Antonin Scalia’s seat. But the biggest factor is that conservative Republicans found a way to institutionalize partisanship and ideology in the selection of justices. The process was a reaction to Republican presidents who could not be trusted to appoint even moderate conservatives. Lawmakers invented a pipeline to groom and train reliable partisan votes on the Supreme Court. The idea was to eliminate the possibility of more Harry Blackmuns or David Souters; that stance has hardened to include opposition to fairly conservative jurists like Sandra Day O’Connor or very conservative ones like Kennedy. 

With Kennedy’s departure, civil rights won’t be the only issue on which the new court will be far from the mainstream. It’s quite possible that the radical “constitution in exile” group may start winning many cases, which could endanger programs such as  Medicare and Social Security, as well as basic New Deal economic regulation. 

Will public opinion constrain them?

Maybe. It could happen through the confirmation process. In a de facto 50-to-49 Senate (John McCain has been absent all summer), just one Republican moderate -- such as Susan Collins of Maine -- could side with a united Democratic Party to defeat a very conservative nominee and push Trump to nominate someone more moderate. But Collins (and Alaska’s Lisa Murkowski) have shown no sign of standing up to very conservative judges throughout the current Congress, and there’s no reason to expect their behavior to change. Meanwhile, several Democrats in Republican or swing states who are up for re-election this year may feel considerable pressure to support a Trump nominee. The extremism of the Republican judicial agenda is difficult to explain to voters. And after Robert Bork’s defeat in the 1980s, conservative and liberal nominees have learned to steer far away from any substantive comments on real judicial approaches and agendas during the confirmation process.

QuicktakeU.S. Supreme Court

Assuming the Senate would confirm a very conservative justice, will Roberts then seek to enact as much of an  extreme agenda as possible or will he attempt to tone it down to avert the possibility of electoral backlash? Past justices have followed the election returns to some extent. But there’s never been a Supreme Court majority like the one that will almost certainly convene in October: The justices have been hand-picked and trained to push hard in a partisan and ideological direction. 

The electoral effects of that push are difficult to predict. Democrats have never been as driven by judicial politics as Republicans, and even with Republicans it’s not clear how much liberal decisions spurred activism and rank-and-file voter turnout. And there’s very little precedent for any part of the government to enact policies that are both far-reaching and very unpopular, let alone the courts. Under normal circumstances, the Supreme Court tends to make only incremental changes, given its doctrine of respecting precedents and the limited docket it assigns itself. The next iteration of the Roberts court could be different. 

To contact the editor responsible for this story: Max Berley at mberley@bloomberg.net

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