The Legitimacy Crisis is Already Here
By: Nathan Wilson
Tags: Supreme Court, Republican Party, Politics, Democracy, United States

I’m a bit frustrated with the current discourse around the legitimacy crisis of the Supreme Court and the US government more generally. I try quite hard to not be the kind of person that always says, “things were always bad, why did everyone just come around to it?”, but this seems like an entirely apt time to be that way.

United States Supreme Court

Particularly when it comes to the mystique that surrounds the supreme court, there is a sense that these political appointees were never political. That perspective, I think, was always simply falling for the rhetoric of impartiality that gave the institution the power that it has today. An analysis that would focus on the actual structural power of the supreme court would show that there has always been both a strong incentive to appoint ideological justices and a deep well of influence that can be gained from a correctly chosen court.

When I think about a legitimacy crisis, I can’t help but think of the 2000 election. At the time I was only three but in retrospect I find it insane that this election was not a legitimate turning point that would radicalize many more people than it did. I’ve read the decision many times in various philosophy of law classes, and while I don’t purport to be a constitutional lawyer, I am an expert at bullshitting an argument to reach a conclusion I like. That is exactly what this decision did. An unelected body just decided an election. It blows my mind every time I think of it. It’s insane to me that we’ve continued to pretend that Supreme Court Justices are not political from that point on.

From the beginning, actually, the supreme court has held an enormous amount of power. First noticed and acted upon by the Warren court, the power of judicial review was always present in the constitution. This is due to the nature of the text and the leeway it gives to courts to decide legality. Unlike a potential constitution like that of other stable democracies, the US constitution is a statement of values, particularly in the bill of rights. This, along with precedent pioneered in the Warren court, leaves open the possibility for rights and privileges to be read into the constitution and the legality of potential laws to be decided on the basis of moral principles rather than procedural fidelity. Even if the rightfully elected legislature does everything right when creating laws, the morality of the law can be interpreted to contradict the morality of the constitution. Rather than a group that calls balls and strikes, the supreme court is a group that interprets the moral framework of a document written over 200 years ago.

While the history of the supreme court has had many progressive victories that have improved the lives of millions of Americans and secured rights for marginalized groups, it seems to me that the Republican party is the most recent to realize the power of judicial review. The explicit goal of appointing judges that would overturn rulings that Republicans disagree with would seem outside the realm of normal procedure for Democrats. The Democratic party still sees the Supreme Court as an impartial arbiter of the law. This antiquated reading of the process has resulted in a failure to act in accordance with the gravity of the situation. A young, ideological, Republican on the court will do more to influence future policy than any President.

All of this is to say that Democrats, both voters and elected members, have for too long pretended that norms matter. In a system where rural voters are favored electorally, and Republicans don’t have to answer to the voices of a majority of Americans, norms should not be a constraint on the power of any political party. This is a new equilibrium where structural power is necessary and should be the ultimate goal of progressive politics.

What I think that means going forward is that progressives, especially elected progressives need to think more in the context of power rather than norms. Kindness and cooperation continue to be a myth that result in getting burned. Real power analysis will lead to decisions that will allow popular progressive ideals to be adopted. That doesn’t mean doing things that are unpopular just to win, that means doing the things that are popular but break the norms.

Expanding voting rights, abolishing the filibuster, making DC a state and giving Puerto Rico a real path to statehood if the citizenry there so choose. These things are right on the merits and can be made to be popular through clear messaging toward their importance to democracy. Some of these violate old norms of Washington, but the norms aren’t what anyone else are following. Progressives need to claim power and not just let nominally moderate republicans trade off who gets to meaninglessly oppose the next unpopular conservative measure.

Bipartisanship is a myth in a world where moderates talk about the destruction of norms and then actively take a hammer to them as soon as they’re off the mic. Elected Democrats need to figure out that power analysis is the real way to make change, not bipartisan compromise.