If the Supreme Court overturns Roe v. Wade in the near future, as a leaked draft opinion Monday night indicated it likely will, the ruling will represent one of the least popular decisions in recent history by arguably the least representative body in American politics.
In other words: A win for generations of Republican operatives who’ve sought to eliminate abortion rights — despite Roe’s overwhelming, decades-long popularity — and stack the court with an ideological, conservative majority. It’s part of a pattern known as democratic backsliding, or a decline in the quality of small-d democracy.
Four of the five justices reportedly behind the anti-Roe majority were appointed by presidents who lost the popular vote, and all of them were confirmed by senators representing a minority of voters.
They got there through a concerted political effort — an effort that members of the court have acknowledged in public.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor wondered aloud in December, during oral arguments for the pending abortion case.
To legal observers of the court’s recent trajectory, the question is overdue.
“The stench that she describes is already very apparent to those of us who pay close attention to the court,” said Joseph Fishkin, a professor at UCLA School of Law.
How Did We Get Here?
In recent years, conservatives packed the court at a few key junctures in American history.
In 2000, the court’s conservative majority in Bush v. Gore delivered the White House to George W. Bush, who went on to appoint Chief Justice John Roberts and Justice Samuel Alito — despite winning fewer overall votes than Al Gore.
Donald Trump, who lost the popular vote to Hillary Clinton, later appointed three justices.
Trump was aided by gamesmanship from then-Senate Majority Leader Mitch McConnell (R-KY), who in 2016 blocked the consideration of then-President Barack Obama’s nominee, Merrick Garland, for a record 293 days, saying the upcoming election precluded any talk of a nominee. That vacancy was filled by Justice Neil Gorsuch just a few weeks after Donald Trump’s inauguration.
McConnell handed conservatives another court seat in the final days of Trump’s presidency, reversing the “rule” he’d invented for Garland and confirming Justice Amy Coney Barrett, who was nominated by Trump just 38 days before Election Day — another record.
The highly partisan nature of Supreme Court nominations in recent years has created a historical first: A conservative majority of what Kevin McMahon, a professor of political science at Trinity College, has labeled “numerical minority justices.”
The five justices that Politico reported make up the court’s anti-Roe majority — Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — are the only justices in American history whose nominations were supported by senators representing fewer voters than the senators who opposed them.
The court has always held itself above day-to-day politics, said Thomas M. Keck, a professor of political science at Syracuse University, but “it is striking the degree to which the center of gravity on the current court was appointed by presidents who themselves lost the popular vote, and were confirmed by senators who collectively represent less than half of the American people.”
‘The Broad Stream Of Public Opinion’
Historically, when the Supreme Court has strayed too far from “the broad stream of public opinion,” Keck said, it has faced political backlash — such as in the 1930s, when a frustrated President Franklin Delano Roosevelt pursued a court-packing plan after the Supreme Court rejected one popular policy after another.
Roosevelt didn’t have the votes to pack the high court, but he won in another way, when the court shifted left and allowed more New Deal programs to remain law.
“I think we might be at one of those moments again,” Keck said, referring to a “persistent disconnect” between the court’s majority and the views of the American public.
Joe Biden, however he may try, is no Franklin Roosevelt: He’s nowhere near as popular, faces considerably smaller Senate majorities and, unlike Roosevelt, his effort to examine court reform was studiously uncontroversial.
What’s more, the court’s conservatives, over the past decade, have issued ruling after ruling stripping Americans’ voting rights, primarily through gutting the Voting Rights Act — in essence, making Congress less democratic and, in turn, making it harder to confront the court’s legitimacy crisis.
‘A Parallel Community’
Some observers have pointed out that the court’s conservative majority doesn’t seem to think of itself as answerable to the American people, especially given the vast right-wing bureaucracy represented by groups like The Federalist Society, which has arguably played a more central role in picking Supreme Court justices than any one president or senator.
“The Republican Party and the Federalist Society have created a parallel community with its own norms and sources of validation,” wrote Florida State University Law Professor Mary Ziegler earlier this year. “The justices may not worry about losing legitimacy in one elite legal circle when they will be heroes in another.”
Fishkin said the court’s conservative justices are sensitive to the views of those in their hyper-partisan ideological bubble — what one book called “the company they keep.”
This ideological conformity, enforced by groups like The Federalist Society from law school on down, can mean more solid conservative majorities. But it can also create blind spots when it comes to public perception. Think of Justice Barrett, proclaiming “this court is not composed of a bunch of partisan hacks” during an appearance at… The McConnell Center at the University of Louisville.
“I don’t know if the court is entirely prepared for, or cognizant of, the way that their own highly-politicized decisions may eventually result in the majority of the American people thinking, ‘We need some political change at the court,’” Fishkin said.
“If I were them, I would not be so confident that the politics of backlash against the court is going to stay as nascent as it is now, once they’ve overturned Roe.”