No Mandate for Supreme Court to Turn to Right

      The Supreme Court that takes the bench on Tuesday [Oct. 9] will have the weakest political mandate of any group of justices in U.S. history. But with a conservative majority solidified by the razor-thin confirmation of Brett Kavanaugh, the Court is poised to make fundamental changes in American law more rapidly than at any previous time in the Court’s history and to test public confidence in the Court's legitimacy and impartiality.
      With Kavanaugh’s confirmation, the Court now includes four justices appointed by Republican presidents who gained the White House despite losing the popular vote: two named by President George W. Bush, after his popular-vote majority re-election in 2004, and now two chosen by Donald Trump. With no popular mandate, Trump in his two appointments and Bush in one followed the Republican model set by Richard Nixon in the 1960s by pushing the partisan envelope on Supreme Court appointments as far as the political system would tolerate.
      Kavanaugh joins three other justices who won Senate confirmation in narrow roll-call votes and, according to one political scientist’s calculations, from senators representing a minority of American voters. The Court may have been intended in the constitutional system to play a countermajoritarian role to some extent, but the Constitution envisions that the justices with that power be nominated and confirmed by political branches responsive to public sentiment.
      Here are the figures, according to Trinity College political scientist Kevin McMahon, from his article “Will the Supreme Court Still 'Seldom Stray Very Far'?: Regime Politics in a Polarized America,” in Chicago-Kent Law Review:
      * Clarence Thomas, nominated by the popular vote-majority president George H.W. Bush and confirmed by a Democratic-majority Senate by a 52-48 vote. Those 52 senators, including 11 Democrats from southern states with substantial African-American constituencies, had been elected with 43.2 million votes; senators voting no had been elected with 46.1 million votes (48.33 percent to 51.67 percent).
      * Samuel A. Alito Jr., nominated by George W. Bush in his second term and confirmed by a 58-42 Senate vote. Senators voting to confirm had been elected with 56.3 million votes; senators voting no had been elected with 61.1 million votes (47.95 percent to 52.05 percent).
      * Neil M. Gorsuch, nominated by Trump after his 2.9 million popular vote loss to Hillary Clinton and confirmed by a Republican-majority Senate in a 54-45 vote. In Gorsuch's case, senators voting against his confirmation had a substantial popular-vote edge over those supporting his confirmation: 73.4 million to 54.1 million (57.6 percent to 42.4 percent).
      In advance of Saturday's historically narrow confirmation [Oct. 6], the Washington Post’s Philip Bump provided a similar analysisby adding up the total populations represented by senators planning to vote for and by senators planning to vote against Kavanaugh. Senators voting no represented a majority of Americans: 55.8 percent, compared to the 44.2 percent of the populace represented by Kavanaugh's supporters.
      Kavanaugh has an added distinction, unlikely to be noted at his retirement ceremony several decades in the future. Nominated by a historically unpopular president, Kavanaugh is the most unpopular Supreme Court nominee in the history of modern polling. Bump cited an NPR-PBS NewsHour-Marist poll taken days earlier that found 40 percent of respondents supporting the nomination compared to 52 percent opposed.
      A CNN poll taken in August found a narrow plurality opposed to his nomination: 37 percent in favor compared to 40 percent opposed. Kavanaugh was the only justice to be under water shortly after his selection; he even fared unfavorably in comparison to the unsuccessful nominees Robert Bork and Harriet Miers, who both had positive ratings at comparable points in the process. Merrrick Garland, President Obama’s obstructed Supreme Court nominee in 2016, had a substantial positive rating: 52 percent in favor, 33 percent opposed.
      Among the Republican senators supporting Kavanaugh, Texas’s personally repellent Ted Cruz coupled his endorsement with a recycled denunciation of policy decisions being made by “unelected judges.” Cruz cited no examples, but he almost certainly was not thinking of the various Roberts Court decisions gutting campaign finance laws, such as Citizens United, or any of the pro-business, anti-consumer decisions crafted by 5-4 majorities.
      As successor to the generally conservative Anthony M. Kennedy, Kavanaugh will slide comfortably into lineups such as those; he signaled his pro-business views and his doubts about campaign finance laws in 12 years on the D.C. Circuit. In contrast to Kennedy, however, he may provide the needed fifth vote either to overrule or sharply restrict Roe v. Wade despite calling it an “important” precedent. Based on his vote to strike down a ban on assault weapons, Kavanaugh is also a likely vote for expanding Second Amendment rights beyond the narrow holding in Heller 10 years ago.
      Decisions along those lines by five unelected justices would be in defiance of public sentiment. The most recent poll indicates that three-fourths of Americans oppose overruling Roe v. Wade. On assault weapons, 70 percent of those polled favor stricter laws. And several polls indicate public concern about the Roberts Court’s pro-business orientation. With public confidence in the Court already slipping, Kavanaugh’s ascension as the Court’s fourth minority justice may embolden an activist conservative majority to put public confidence at greater risk unless Chief Justice John G. Roberts Jr. keeps them in check.