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Guest opinion: The Supreme Court in context

By William Cooper - | Jun 21, 2024

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William Cooper

As the Supreme Court considers Donald Trump's immunity claims, many commentators are deeply concerned. Writing in Politico, for example, Ankush Khardori asserted that, "There is good reason to remain worried about the conservative justices' handling of the case so far, about how they have already influenced the 2024 election to Trump's political benefit and about how they could inflict still more damage on the most important democratic process in our country: the presidential election."

Distrust of the court is nothing new, of course. But Democrats' criticism in recent years has been fierce. "The problem is not that the Supreme Court is just conservative," Rep. Katie Porter said. "The problem is that it is corrupt." According to Rep. Cori Bush of Missouri, "The Supreme Court is a cesspool of corruption devastating our communities." Sen. Jeff Merkley of Oregon put it this way: "This activist, extremist MAGA court faces a legitimacy crisis."

This rhetoric is overheated, to be sure. But it's hardly surprising. Stepping back and assessing the court since 2000 puts the vitriol into perspective. There have been numerous catastrophic setbacks for Democrats.

The first came in late 2000 when the court decided -- sharply along partisan lines -- the presidential election between Republican George W. Bush and Democrat Al Gore. In Bush v. Gore, five conservative justices gave Bush the victory. Having unelected judges decide a presidential election -- in either direction -- was sure to enrage half the country. And Democrats' distrust of the court multiplied as Bush appointed two conservative justices, John Roberts and Samuel Alito, who sent the court's jurisprudence careening rightward.

Then came the second major setback. In Barack Obama's last year in office, 2016, sitting Justice Antonin Scalia (a conservative) passed away. Obama nominated centrist federal appellate judge Merrick Garland to replace Scalia. But the Republican-controlled Senate refused to hold confirmation hearings. Led by the Senate majority leader from Kentucky, Mitch McConnell, Republicans asserted that it was up to the Senate majority -- alone -- to decide whether to consider the president's nomination. "The president nominates. The Senate confirms. The American people should have a voice, not this lame duck president out the door," McConnell said. "All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year."

This refusal to confirm Garland betrayed Republicans' core Constitutional responsibilities: The presidential prerogative to appoint justices isn't void merely because it's an election year. Yet it worked. Donald Trump, a Republican, was elected president several months later. And Trump, in turn, quickly nominated conservative justice Neil Gorsuch, who McConnell and Senate Republicans giddily confirmed.

Democrats seethed. And then things got worse. In 2018, Ronald Reagan-appointee Justice Anthony Kennedy resigned and Trump nominated federal appellate judge Brett Kavanaugh, a more conservative judge than Kennedy in key areas (including abortion). At Kavanaugh's confirmation hearing, Christine Blasey Ford accused Kavanaugh of sexually assaulting her when they were teenagers. The Senate confirmed Kavanaugh 50-48.

Then came the decisive setback. Sitting justice Ruth Bader Ginsburg (appointed by Democrat Bill Clinton) passed away in 2020, just a few months before the presidential election. And Senate Republicans flip-flopped. Confirming a justice during a presidential election year suddenly wasn't a problem. And in strode another conservative justice, Amy Coney Barrett, to replace Ginsburg.

Thus, three instances of happenstance -- Bush v. Gore, McConnell's betrayal and Ginsburg's replacement -- placed four new conservative justices on the nine-person court. Consider a simple counter-history: If Al Gore had won a few more votes in Florida, if Scalia had died a few months earlier and if Ginsburg had retired a few years earlier, then so much would have been so different. Today the court would have seven liberals dominating its jurisprudence rather than three being marginalized.

Is it any surprise Democrats are angry?

The new conservative majority should have recognized that maintaining respect for the court requires the American people's broad acceptance. Given how they assumed their majority -- and the fragility of a polity riven by polarization -- the conservatives should have been modest and measured with their jurisprudence. They should have trodden carefully and respectfully. They should have moved slowly.

Instead, they rocked the system to its core.

In May 2022, the court overruled Roe v. Wade. Instead of simply upholding the Mississippi law at issue -- which outlawed abortions after 15 weeks -- a bare majority of five conservative justices went further and eliminated the entire 50-year-old constitutional right to an abortion. And they didn't stop there. The very same week, the conservative justices struck down a New York gun regulation. Instead of simply declining to hear the case, they construed the Second Amendment to give Americans the right to carry firearms in public.

Fresh off the aggressive expansion of federalism with abortion, sending the issue to the states, the conservative justices lurched in the opposite direction and imposed their preferences on guns nationwide -- right in the middle of a national crisis of gun deaths.

Respect for the court is central to the rule of law. And Americans of all stripes still do respect court orders. But this won't last if the court sacrifices its long-term legitimacy to satisfy short-term judicial cravings. By electing to gratuitously overturn Roe and expand the Second Amendment, the court's conservatives undermined its essential place in America's Constitutional constellation. They leaned deep into the darkest corners of American tribalism and polarization and forced all Americans to toe their line.

They did so at precisely the wrong time. In precisely the wrong way. And not because they had to -- but simply because they could.

William Cooper is an attorney and the author of "How America Works ... And Why It Doesn't."

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