Kevin J. McMahon, Trinity College

If the leaked Supreme Court decision on abortion is to be believed, five justices have voted during private deliberations to overturn Roe v. Wade. Notably, those five are what I refer to as “numerical minority justices.”

They are the only five in American history to qualify for that designation. And three of them were appointed by a minority president. Since Donald Trump lost the popular vote in the 2016 election, he was, by definition, a minority president, elected by a minority of the voters.

Similarly, I define a “numerical minority justice” as a nominee who won confirmation with the support of a majority of senators, but senators who did not represent a majority of voters.

That raises a question that goes to the heart of the Supreme Court’s legitimacy in our democracy: Will this be a court out of line with America?

If so, what might that mean for the country’s politics and law? Indeed, for the nation itself?

Court out of step with America?

Consider Justice Brett Kavanaugh, one of the five justices whose name is on the leaked draft opinion overturning Roe.

During his confirmation, Kavanaugh was supported by a majority of the 98 senators voting on the nomination – 49 Republicans and one Democrat. But the votes earned by those 50 senators in their most recent elections added up to a total of only 54,102,052.

The 48 senators who opposed Kavanaugh’s confirmation, all Democrats, garnered 78,623,957 total votes in their most recent elections – 24.5 million more votes from people supporting those senators.

Compare those figures with the support for one justice who has apparently not joined with those planning to overturn Roe, Elena Kagan. The Senate confirmed Kagan to a seat on the court by a vote of 63-37. The 63 senators supporting her nomination had collected nearly twice as many votes in their most recent elections as the 37 senators in opposition.

Seldom far from the mainstream

To be sure, the framers of the Constitution purposely decided to provide each state with two senators, knowing that those senators from states with smaller populations would represent fewer – at times far fewer – citizens than those with larger ones. Today, for example, California’s population is close to 40 million while Wyoming’s is less than 600,000. Yet both states have two senators.

This arrangement was a central aspect of the Great Compromise, which helped convince representatives from sparsely populated states — fearful of being ignored by an alliance of the heavily populated states — to back the new Constitution.

Nevertheless, since the popular vote began to matter in the election of 1824, a minority president had never succeeded in appointing a minority justice. Indeed, until this century, even for presidents who won the popular vote by a large margin, significant Senate resistance more often than not doomed a nominee to the court.

This might help to explain why political scientist Robert McCloskey concluded in 1960 that the court had rarely “lagged far behind nor forged far ahead of America” and that the justices had “seldom strayed very far from the mainstreams of American life.”

Might politics and the courts collide?

Things are different today.  We live in a period of deep political polarization. This shift in American politics raises some important questions about the Supreme Court’s legitimacy in our democracy.

In the past, political majorities at the polls have supported significant doctrinal shifts by the court, even if the specific rulings have been controversial.

In other words, as McCloskey and fellow political scientist Robert Dahl observed, since one party typically dominated during an extended period of time, the justices – because they were products of that enduring regime – generally advanced the regime’s interests in the long term. To put it simply, for much of American history, the court followed the election returns.

For example, the 1905 decision of Lochner v. New York, which struck down state legislation designed to protect workers via the court’s freedom of contract doctrine, was a product of the Republican regime that dominated American politics at the time.

Similarly, the New Deal Democratic regime ushered in by the landslide election of Franklin D. Roosevelt in 1932 ultimately provided the political basis for another divisive decision, Brown v. Board of Education, which found that supposedly “separate-but-equal” segregated schools were unconstitutional.

Today, no such majority exists.

The popular vote for president and the Electoral College results have twice in the last six presidential elections been out of alignment.  And the Democratic presidential nominee has won the popular vote in seven of the last eight presidential elections, from 1992 to 2020, yet Republican presidents have appointed six of the nine sitting justices.

Given this recent divide between the popular vote and the electoral vote, it seems reasonable to consider the possibility of the alternative to McCloskey’s conclusions – of a court that consistently diverges from American majorities on the most pressing issues of the day.

After all, Supreme Court justices have lifetime appointments and typically stay on the bench for many years, even decades.  Their imprint on the law can be enduring and their legitimacy, conferred in part by the confirmation process, helps ensure their place in our democracy.

Roe’s pending end

With the addition of the Trump justices, many court observers suspected the 1973 Roe ruling, which affirmed a woman’s right to terminate an unwanted pregnancy, would become a prime target of the newly-established conservative majority.

While Roe has been a deeply divisive decision since the day it was announced, the Republican in the White House at the time — Richard Nixon — neither publicly denounced it nor sought to overturn it. And three of his four appointees to the court joined the 7-2 majority, including the opinion’s author Justice Harry Blackmun.

Of course, Nixon’s Republican successor, Ronald Reagan, oversaw a Justice Department that repeatedly asked the court to reverse itself on Roe.  But ultimately a majority of the justices refused to go along, including two of Reagan’s three additions to the court, Sandra Day O'Connor and Anthony Kennedy.

Today, polls show significant opposition to overturning the decision.

For example, according to a post-leak CBS News poll, 64% of Americans want the court to keep Roe “as is.” A Washington Post-ABC News poll supports this conclusion, finding 54% of respondents did not think the court should overturn Roe, while 28% thought it should.

It would be best if a court making a determination on the future of Roe could do so with the utmost democratic legitimacy. But given the state of U.S. politics today, that is a near impossibility.

In September 2021, Gallup reported that the court’s approval rating had fallen from 58% support a little more than a year earlier to a new low of 40%. Perhaps more strikingly, another poll showed an increasing partisan divide in views of the court, with 65% of Republicans approving of its work and just 46% of Democrats doing so.

A five-justice conservative majority that discards Roe after nearly 50 years on the books will likely further the belief that the court reaches its rulings based mainly on politics rather than law, especially given the central role opponents of the decision have played in mobilizing voters to support Republican candidates like Donald Trump.

As a political scientist who has studied and written about the Supreme Court for more than 25 years, I believe this result will likely further erode of the court’s legitimacy, and deepen the partisan divide in America.

This is an updated version of an article originally published on July 7, 2018.

The Conversation

Kevin J. McMahon, Professor of Political Science & Director of the Graduate Program in Public Policy, Trinity College

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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