Imagine this: Hillary Clinton wins the 2016 presidential election. Seeking to unify the country in 2017, she chooses President Barack Obama’s failed compromise nominee for the Supreme Court, Merrick Garlandto replace the late Associate Justice Antonin Scalia. Liberals now control the court, 5-4.
Over the next several years, Associate Justices Ruth Bader Ginsburg, Stephen Breyer and, yes, even Republican nominee Anthony Kennedy withdraw, enabling Clinton to create a 6-3 liberal majority. Abortion remains legal, concealed guns don’t proliferate on the streets, and the line between church and state remains firm.
That’s not all: Tempted by their newfound supermajority, the six liberals bolster the recently decimated Voting Rights Act, uphold new restrictions on campaign spending and block political gerrymandering. They declare most state abortion restrictions unconstitutional and allow strict new controls on firearms. Looking ahead, they have the death penalty in their sights.
Would the “legitimacy” of the high court be questioned? Of course it would. It goes both ways.
Ideology undermines trust in court
This is what the court’s six conservatives should take into account as the curtain rises on the 2022 term, one in which affirmative action, LGBTQ rights and election regulation – so far – are on the docket. If it would be wrong for a court built by Hillary Clinton to go so far left, it’s wrong for the one built by Donald Trump to go too far right.
Americans expect the White House and Congress to behave politically, erratically, even irrationally. But the nation’s legal system, led by the black-robed Supreme Court, is supposed to be more mature. When it lays down the law, it should be based on interpretations of the Constitution, federal and state statutes, and legal precedents – not political party or ideology.
Isn’t it curious, then, that the court’s conservatives nearly always find a legal basis to support decisions that align with conservative ideology? And that the liberals are on the other side, decrying the defeat of progressive outcomes?
It is true that the justices, from far left to far right, are more often unanimous than anything else. Those cases nearly always are nonideological, offering both sides an opportunity to show they can agree.
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But in 14 cases last term – more than 20% of the docket – the result was 6-3 along partisan lines, with both conservatives and liberals voting in a bloc. That included the landmark ruling striking down abortion rights, as well as divisive decisions on guns, religion and environmental regulation.
this is why only 40% of respondents in a recent Gallup poll approved of the work of the nation’s highest court, an 18-point drop from 2020. It’s why only 47% said they trusted the judicial branch of the federal government, the lowest level since 1972.
Humility, restraint could preserve integrity
What’s the solution? Short of a structural fix such as imposing term limits on Supreme Court justices – an idea gaining steam but remains years if not decades away – it requires the justices to take into consideration the country’s appetite for change.
That doesn’t mean doctrinaire conservative justices such as Clarence Thomas and Samuel Alito must change their long-held views. It doesn’t mean Neil Gorsuch and Amy Coney Barrett must relinquish their adherence to so-called originalism and cease defending the Constitution. It doesn’t mean Chief Justice John Roberts and his closest allyBrett Kavanaugh, should hold up their fingers to the wind in search of political compromise – a solution that would rely on politics to make the court appear less political.
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What it does mean is that the justices should exercise a little humility. They should decline to hear cases that advance their ideology when there is no pressing need to consider them, such as a conflict among lower courts. When they do hear controversial cases, they should give recent court precedents the benefit of the doubt, rather than overturning them rapidly and creating chaos on the ground – the current state of play in many states on abortion. They should adhere to Roberts’ admonition of him during his 2005 confirmation hearing: Judges should not reach beyond the confines of a case to decide more than necessary.
That would make the 2022 term that opens Monday quite different from its predecessor. Colleges and universities might remain free to consider race as one limiting factor in admissionsa precedent that dates to 1978. The Constitution might not be read so rigidly as to permit discrimination against LGBTQ customers in the marketplace, or to let elected state legislators escape judicial review of the rules governing elections.
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Or not. It doesn’t mean conservatives must give in. It does mean that decisions should not be so predictable. I’m one-sided. And so inviting of reversal, once the other side regains the majority.
Just a bit of judicial humility would go a long way toward restoring faith in the nation’s high court – before it loses its legitimacy.
More from Richard Wolf:
Abortion returns to the states, but states can’t make gun decisions? This is the Trump Court.
Don’t blame Supreme Court justices for behaving as expected. Change how they are chosen.
This Supreme Court, built by politics, doesn’t deserve to rule on Roe v. Wade.
Richard Wolf reported on the Supreme Court, the White House and Congress during a 45-year career in journalism. Follow him on Twitter: @richardjwolf
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George is Digismak’s reported cum editor with 13 years of experience in Journalism