Do We Have the Supreme Court We Deserve?
It has become a willing participant in a war for the soul of the country.,
When I left the daily Supreme Court beat back in 2008, the Week in Review, as The Times’s Sunday Review section was then called, invited me to offer some reflections on nearly 30 years of writing about the court, its cases and its members. The long essay ran under the headline “2,691 Decisions,” a number based on an editor’s calculation of how many decisions the court had issued during my time on the beat. I ended it with an observation about the “vital dialogue” between the court and the country. This was my conclusion:
“The court is in Americans’ collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve.”
A friend who recently came upon that article challenged me. “Do you still think we have the Supreme Court we deserve?” she asked.
Actually, sadly, my answer now is no.
It’s not that I think the country simply deserves a Supreme Court that happens to agree with me; I was finding plenty to disagree with back in 2008. Justice Samuel Alito had taken Justice Sandra Day O’Connor’s place in early 2006, wrenching the closely divided court to the right. In June 2007, Justice Stephen Breyer, during an impassioned oral dissent in a highly charged case on what measures public school systems can take to maintain racial diversity, lamented that “it is not often in the law that so few have so quickly changed so much.”
Nonetheless, Justices John Paul Stevens, Anthony Kennedy and David Souter were still on the bench in 2008, proving every day that to be a Republican-nominated Supreme Court justice was not necessarily to be a handpicked conservative spear-carrier in the country’s culture wars. (The three were chosen by Gerald Ford, Ronald Reagan and George H.W. Bush respectively.) It had not occurred to anyone then that a hostile Senate in 2016 might keep a president’s Supreme Court nomination bottled up for 11 months without even a hearing, nor that a supine Senate would do a subsequent president’s bidding four years later and bludgeon a nomination through to confirmation while millions of Americans were already casting early ballots for president.
In short, we are in a different place now than we were in 2008, and the current term finds the court in a danger zone as a willing — and willful — participant in a war for the soul of the country. Last term’s cavalier treatment, in a case from Arizona, of what remains of the Voting Rights Act sent a frightening signal about whether the court can be counted on to protect democracy from the Republican-led assault now taking place before our eyes. We now have justices apparently untroubled by process and precedent, let alone appearances: Let’s not forget that two of Donald Trump’s three appointments arrived under debatable circumstances, with Justice Neil Gorsuch taking a seat in 2017 that was Barack Obama’s to fill and Justice Amy Coney Barrett being jammed through to confirmation late in 2020.
One might suppose that the supercharged conservative majority might proceed with some caution, if not humility, before projecting its agenda on a wary country that never signed up for it. After all, of the six Republican-appointed justices, only three were named by a president who won a majority of the popular vote — Justice Clarence Thomas by George H.W. Bush, and Chief Justice John Roberts and Justice Alito by George W. Bush in his second term. And given the small-state, red-state tilt of the Senate, it’s not surprising that the senators whose votes provided the narrow margins for confirming the three Trump-chosen justices represent less than half the country’s population.
Yet what we see from the court is not humility but, to put it politely, a lack of situational awareness. Polls consistently show that a majority of Americans oppose overturning Roe v. Wade, something the court has given every indication that it will do within the next six months. Three-quarters of respondents in one recent poll said the abortion decision should be left to women and their doctors. (That was also the view of a majority of the public in a Gallup poll released in the summer of 1972, shortly before the court issued its decision in Roe.)
Hundreds of pages of briefing in the Mississippi abortion case that was argued this month failed to unearth a single reason other than “because we want to and because we can” for overturning a 49-year-old precedent that the court reaffirmed in crucial respects two decades later in the carefully considered compromise that was the Casey decision. (All five members of the Casey majority were appointed by Republican presidents, just as are all those who stand on the verge of repudiating that same precedent today.)
It is now four months and counting since the court permitted the obviously unconstitutional Texas vigilante law, known as Senate Bill 8, to all but shut down abortion in the state, a situation the 5-to-4 majority has refused to rectify. Instead, the court made a show of expediting the S.B. 8 argument in early November and then issued a Potemkin village-like opinion that resulted only in pushing a resolution further into an unknown future.
The justices’ responses to arguments this month suggested that a majority will soon force Maine, against the will of its legislature, to subsidize tuition for parents living in school districts without high schools who send their children to parochial schools. Roughly half the state’s school districts are too small to sustain a high school. To satisfy the state Constitution’s guarantee of free K-12 education, the state pays the tuition at private schools but excludes those offering an explicitly sectarian education. Where a federal appeals court, in upholding the exclusion, saw a principled distinction, the conservative justices saw only anti-religious discrimination.
As the court proceeds down its current path, will there be a reckoning of some sort? I’m not smart enough to know the answer, but a prescient essay that Russell Wheeler of the Brookings Institution published in 2019 suggests that political scientists’ long-held view of the role of the Supreme Court in American politics will be profoundly upended. Mr. Wheeler, Brookings’s longtime specialist on the federal courts, recalled a famous 1957 article in which the Yale political scientist Robert Dahl observed that because of regular presidential appointments, “policy views dominant in the court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.”
It was a comforting observation that anchored the court’s legitimacy in democratic theory. Mr. Dahl, who died in 2014 at 98, perhaps chose not to envision a president with the muscle, the will and the opportunity to place young partisans on the court — in other words, aided by the Constitution’s gift of life tenure, to capture the court for the next generation and freeze in place a legacy the American people never chose.
Is this the Supreme Court we deserve? It is not.
In late 2009, David Shipley, the editor of what was then called the Op-Ed page, invited me to write an opinion column every two weeks centered on the Supreme Court. He left The Times for Bloomberg News the following year, and we never actually met, but I remain in his debt. Writing roughly 26 columns a year for the past 12 years has given me not only a platform but a discipline, a privileged and rare second act in journalism. I have felt a deep connection not only to my subject but also to my readers and, of course, to the newspaper where I began, fresh out of college, as an intern for the storied political columnist James Reston.
This is the last of my regular columns, but not the last time my voice will appear here. I will venture an opinion from time to time. How could I not?
In 1998, I was fortunate to win a Pulitzer Prize. I was the publisher’s dinner partner at the celebratory dinner he threw for that year’s Times winners. Midway through the meal, Arthur Sulzberger Jr. asked me what my long-term goal was at the paper, where I had been working by then for 30 years.
“I would like to write a column,” I replied.
The publisher looked at me with a surprised expression. “A column!” he exclaimed. “What would you write about?”