As of this writing – a day after the testimonies of Dr. Christine Blasey Ford and the nominee himself – the Supreme Court nomination of Brett Kavanaugh still appears to be on track. With Jeff Flake (R-AZ), one of the few possible Republican no-votes now in stated support of the nomination, the chance of a rejection by the Senate is slimmer than before. Over the last few weeks, understandably much attention has been given to the question of whether Kavanaugh will be confirmed. But what will happen if Kavanaugh is actually confirmed?
Kavanaugh, by all accounts, is a loyal Republican and conservative, and his voting record on the court is likely to be in line with the other conservative justices. As the replacement of Anthony Kennedy – who generally voted with the conservatives on economic issues but had a tendency to swing to the liberal wing of the court on social issues – the most obvious consequence of a Kavanaugh confirmation is that the court is likely to swing right. Thus, the most obvious likely consequence is a more conservative leaning high court.
But with major sexual assault allegations against Kavanaugh still unresolved, and considerable questions about the nomination process itself, what might the confirmation of Kavanaugh do to the perceived legitimacy of the Supreme Court itself? Political science research on the courts would suggest that this question of legitimacy is of core concern to the justices on the court. Yet, with the possible confirmation of Kavanaugh, the unresolved allegations of sexual misconduct against Clarence Thomas, and the way Republicans blocked the nomination of Merrick Garland in 2016, the Supreme Court faces a potential legitimacy problem not of its own making, and one it may not have the ability to solve.
Legitimacy of the Supreme Court
Political scientists have long argued that Supreme Court justices should be considered to be political actors. This is in contrast to how judges see themselves. Indeed, judges generally argue that their job is simply to interpret the law. As John Roberts famously argued in his confirmation hearings in 2005, he understood his job to be “to call balls and strikes and not to pitch or bat.” Yet, most political scientists believe that the Supreme Court is filled with people with strong political beliefs, whose main goal is to get rulings that are closest to their personal preferences.
The extent to which justices can always get what they want is constrained by the make-up of the court. However, even if a justice finds themselves in an ideological majority, many political scientists have argued that even then justices are constrained – at least to some extent – by the political context in which they function. That is, justices are believed to frequently adjust their voting behavior if they believe that their own preferences are out of touch with the current state of American politics.
The reason they do so – so the theory goes – is not necessarily because justices want to please the public, but because they are concerned about the court’s legitimacy in the eyes of voters and other political actors. The basis of this concern is the general understanding that while the court can rule on almost all issues it wishes to pick up, it cannot implement its own rulings. While it is doubtful that Andrew Jackson ever actually uttered the words in response to an unfavorable Supreme Court ruling in Worcester v. Georgia, the quote “John Marshall has made his decision; now let him enforce it!” presents a basic truth about the rule of the Supreme Court in American politics: the court has concluded early on that it has the final say on issues that come before it, but it has to rely on the goodwill of other political actors for its rulings to have any value.
When the court finds itself out of touch with the broader public, it therefore might try to adjust itself to ensure a breakdown of its authority. To be sure, this is unlikely radically change how the court rules, but it may make the court more cautious in controversial issues. After all, if a president, governor, or other governmental actor at the federal or state level refuses to implement its ruling, there is practically nothing the court itself can do to force them to comply. Indeed, as political scientist Gerald Rosenberg has argued in his classic book The Hollow Hope, there is a long history of Supreme Court rulings that were effectively ignored, or where implementation was deliberately delayed over a long period of time.
Thus, the court is likely to – at least at times – police itself in the kind of rulings it makes to ensure that political actors across the political spectrum will accept and implement not just ruling they agree with, but also those rulings they disagree with.
The Appointment Process and the Supreme Court
A clear limitation in this regard is that the court has no direct power over who is selected to be on it. Supreme Court justices are nominated by the incumbent president, and confirmed by a majority vote in the Senate. This means that, while justices once on the court might care about legitimacy of the institution and adjust their behavior to help strengthen it, the selection process itself is out of their control. If we assume the legitimacy of the court is based solely on the type of rulings it reaches, this might not be a problem. But what if the political process that puts justices on the court leads people to question the legitimacy of the institution itself?
There is no doubt that the retirement of Anthony Kennedy provided Trump with the right to nominate a new justice, and that a Republican controlled senate was likely to confirm his choice. Still, the way in which the Kavanaugh nomination has played out – including his own dramatic testimony yesterday – has raised a lot of concerns about the speed and carelessness of the nomination process. If confirmed, those concerns are not going to go away. While it is theoretically possible for Kavanaugh (or, indeed, any other justice) to be impeached, the likelihood of that succeeding is very low due to the two-third majority required in the Senate. Thus, if Kavanaugh is confirmed, he will be perpetually controversial – not necessarily for what he does while on the court, but for being on the court at all. Yet, he will also have a lifetime appointment.
Importantly, Kavanaugh would not be the only justice whose basic presence on the court – rather than the quality of their decisions – might lead people to question the legitimacy of the institution itself. With the sexual assault allegations against Kavanaugh, there has been renewed attention on the allegations made against Clarence Thomas during his confirmation procedure, and the way the (all male) Senate judiciary committee treated Anita Hill, Thomas’ accuser. While Kavanaugh’s confirmation is likely to rely almost exclusively on Republican votes, Thomas was confirmed with considerable support of Democratic senators. Still, many continue to question the process that lead him to the court.
To be sure, even if Kavanaugh is not confirmed and Thomas’ nomination had failed, their replacements would still have been conservatives, and it is possible that the actual ideological leaning of the court would not have been radically different either way. Of course, the same is not true for Neil Gorsuch, who many Democrats believe has his seat on the court due to Republicans ‘stealing’ a seat Barack Obama should have been allowed to fill.
Crucially, all three of these justices are conservatives. With partisanship – particularly, negative partisanship – dominating politics today, it is not unthinkable that political actors on the left could use questions about the process that got these three justices on the court to dismiss any future rulings in which the three of them are crucial to the outcome. This may simply be alarmist, and it is possible that the court can maintain its credibility on both sides – possibly if Chief Justice Roberts takes on a more moderate role in the wake of Kennedy’s retirement.
But with both parties defining themselves increasingly in opposition to each other, it is not hard to imagine the court being dragged into the partisan fray even more than it already is. If Kavanaugh is confirmed and the court swings right, we may find Democratic political actors raise the question “if this is how membership of the court is set, why would we follow its orders?” That is, one can imagine that Democratic governors, attorneys general, or even future presidents may look at a Supreme Court ruling in which the conservative majority relies on votes from Thomas, Gorsuch, and Kavanaugh and dismiss them as coming from an illegitimate political institution.
Political institutions often function over time based on habit more so than anything else. For the court, the habit is that its rulings – whether one agrees or disagrees with them – must be followed because the institution has the authority to make such decisions. What happens if people start to question that authority?