The Supreme Court Is More Unpopular Than It’s Been in Decades
Centrist liberals want to bolster the Supreme Court’s political legitimacy. Conservatives want to use it to advance minority rule. But as a new appointment looms, there’s a better alternative: loosening the court’s undemocratic stranglehold on US government.
Coming late in the show’s fifth season, one of the most memorable episodes of Aaron Sorkin’s The West Wing finds the Bartlet administration making two appointments to the Supreme Court. Faced with the sudden death of one of the body’s conservative justices (and a Republican majority on the Senate Judiciary Committee) President Josiah Bartlet’s staff meets with a variety of potential candidates, including the very liberal Evelyn Baker Lang (portrayed by Glenn Close) and the ultraconservative Christopher Mulready (William Fichtner).
High jinks ensue, and the administration ultimately decides to abandon the rather boring idea of appointing two centrists in favor of Mulready and Baker Lang — mainly because senior staff find their high-minded squabbling about legal matters entertaining. “I hate him, but he’s brilliant,” declares Bartlet communications director Toby Ziegler (Richard Schiff). “And the two of them together are fighting like cats and dogs . . . but it works.”
The whole scenario is, of course, as improbable as it is ridiculous. And, as was typical of the show, it also projected an assortment of bad and self-defeating liberal impulses: uncritical deference to credentialed expertise; a fetish for bipartisanship and compromise as ends in themselves; a tendency to view certain institutions as being outside the baser realm of democratic politics entirely. Its implicit conception of the Supreme Court, however, has been a very real one among centrists for decades and seems likely to make an appearance during the upcoming nomination hearings to replace retiring liberal justice Stephen Breyer.
In its current state of conservative control, fewer liberals seem to have quite the same rosy view of the court and have come to understand it as something more partisan. Driven partly by a collapse of support among self-identified Democrats, in fact, newly published polling from the Pew Research Center finds the general public attitude toward the Supreme Court at its lowest ebb in nearly four decades — down significantly from even a few years ago.
There’s nonetheless good cause to believe some would still love to see a version of its earlier image restored: 2020 proposals from the likes of Elizabeth Warren and Pete Buttigieg emphasizing the importance of rebuilding the body’s nonpartisan legitimacy as a response to right-wing politicization, even as the idea of court expansion has gained steam. As Samuel Moyn put it to Jacobin following the death of Justice Ruth Bader Ginsburg in 2020: “The standard centrist discourse has been that [Mitch] McConnell stole the court, and [that] it needs to be put back as a space of elder compromise between center-left and center-right.”
There can be no doubt that conservatives have embraced the Supreme Court as a significant instrument for pursuing their ideological objectives and entrenching minority rule. While certainly more insidious than the centrist fantasy of a post-ideological body, the right-wing impulse gets perversely closer to an unavoidable reality of the court: namely that it has always been and will always be a political institution, notwithstanding whatever aura of enlightened deliberation it’s seen to project. Intuitively, the Right’s conception of the court also seems to grasp its fundamentally conservative nature as a check on mass democracy and majority rule — one reason it’s historically often been the most ideologically reactionary branch of government and is today poised to throttle efforts to fight climate change, break up corporate monopolies, and protect reproductive rights.
Though radically different in form and content, the centrist and reactionary narratives of the Supreme Court nevertheless have one highly significant point of overlap in that they both ultimately want it to remain a central and powerful institution of American political life. As the court enters a new moment of visibility, it’s therefore a good occasion to remember that the Left’s long-standing objective has actually been to disempower and defang the Supreme Court rather than try and pack it with ideological fellow travelers. Though a less right-wing court would undoubtedly be an improvement on the status quo, the best alternative to Republican politicization isn’t a less slanted judiciary, but one subordinate to popular legislative majorities — and a country more democratic from top to bottom.