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21 September 2020

How Trump’s Supreme Court pick could trigger a crisis of legitimacy for the judiciary

If the nominee is confirmed, five of the nine justices on the court will have been appointed by presidents who lost the popular vote.

By Ido Vock

Ruth Bader Ginsburg, the legal giant who died last week at the age of 87, served on the US Supreme Court for 27 years under the tenures of four presidents. Two were Democratic (Bill Clinton, who appointed her to the highest court in the land, and Barack Obama) and two Republican (George W. Bush and Donald Trump). Both Republicans lost the popular vote during a presidential election at least once. Neither Democrat did.

One of the key questions raised by the fierce battle already unfolding over Ginsburg’s succession therefore is the place of majority rule in America, as Ronald Brownstein writes at CNN. If Trump’s preferred nominee to fill her seat is confirmed during the last months of his first term, then a president who was elected with three million fewer votes than his opponent will have had his pick for the Supreme Court approved by a Republican Senate majority elected by around 14 million fewer voters than the Democratic minority. Five of the nine seats on the court will have been appointed by presidents who lost the popular vote. (62 per cent of voters believe the next president should fill Ginsburg’s seat.)

A prominent feature of American politics from the early 2000s has been the wishes – and votes – of a progressive majority of voters being quashed by a minoritarian Republican party increasingly able to win power through a combination of a more strategically distributed electorate and voter suppression efforts. In the 2000 election, Bush won fewer votes than Al Gore. Sixteen years later, Trump won fewer votes than Hillary Clinton. The current three-seat Republican majority in the Senate was elected by just 45 per cent of voters – yet without Republican defections, the Democratic minority in the Senate is now almost powerless to oppose moves such as the potential confirmation of a Trump nominee to the Supreme Court.

[See also: Ruth Bader Ginsburg: the loss of a legal giant – and what it might mean for the country]

A third Trump appointment to the Supreme Court, such as ultra-conservative frontrunner Amy Coney Barrett, would further turn the highest court in the land into a conservative check on progressive voters, even when they are in the majority. Laws on issues such as gun control, carbon emissions and healthcare passed by a Democratic Congress could be declared unconstitutional and tossed out by a Supreme Court with a reliable 6-3 conservative majority. Abortion rights are also not off the table: Barrett is “the pick who seems most inclined to overturn Roe v. Wade as completely and quickly as possible,” the political commentator Ruth Marcus wrote two years ago, despite 78 per cent of Americans being pro-choice.

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The urgency of the issue is further underscored by the fact that the Supreme Court will hear arguments on yet another attempt to declare the Affordable Care Act (popularly known as Obamacare) unconstitutional just a week after the election in November.

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It is no surprise that Democrats have begun to call for reform and expansion of the Supreme Court, to break the headache that a five-seat conservative majority could become for a progressive president. There is historical precedent here: swathes of Franklin D. Roosevelt’s New Deal measures were struck down by a Supreme Court made up of six Republican appointees, which he made plans to pack with more of his judges, though he eventually backed down. Still, not even in that case were the justices nominated by presidents who lost the popular vote.

The coming battle over the ninth seat in the court will be bruising. If the Republicans succeed in installing a fifth justice appointed by a president elected by a minority of voters in at least one election, the institution could face a crisis of legitimacy – and Americans could head further down the path of being ruled by the unrepresentative conservative clique which maintains a stranglehold on the country’s institutions.