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Brett Kavanaugh and the Supreme Court’s looming legitimacy crisis

Confirming Kavanaugh could lead to a collapse in faith for the Court — with dire consequences for American democracy.

Brett Kavanaugh, Trump’s Supreme Court nominee, testifies on September 6, 2018.
Brett Kavanaugh, Trump’s Supreme Court nominee, testifies on September 6, 2018.
Drew Angerer/Getty Images
Zack Beauchamp is a senior correspondent at Vox, where he covers ideology and challenges to democracy, both at home and abroad. Before coming to Vox in 2014, he edited TP Ideas, a section of Think Progress devoted to the ideas shaping our political world.

The Brett Kavanaugh Supreme Court nomination has become a crisis of conscience for America: a test of whether sexual assault allegations against a powerful man are taken seriously by the Senate, of just how real the broader post-#MeToo awakening is. But for the Supreme Court, it’s a sign of a different kind of crisis on the horizon: a crisis of legitimacy.

The American public has long had a deep and abiding faith in the Supreme Court as the last say in our public legal disputes. This faith survived controversial cases, like Roe v. Wade and Bush v. Gore; it survived divisive nomination processes, like the Senate’s rejection of Robert Bork and Anita Hill’s harassment allegations against Clarence Thomas. A 2005 Annenberg survey found that the Supreme Court is significantly more trusted than the other two branches of the federal government, and that 75 percent of Americans believe “the Supreme Court can usually be trusted to make decisions that are right for the country as a whole.”

But in recent years, the public has soured somewhat on the Court. An annual Gallup poll of public confidence in American institutions shows that the percentage of Americans who have a “great deal” or “quite a lot” of confidence in the Court has been mired in the 30s for much of the past decade; in the 1990s, that figure routinely reached the 40s and 50s. It’s still more trusted than Congress, but that’s not a high bar.

Now experts say the political firestorm surrounding Kavanaugh’s nomination could tip this trend toward a full-blown crisis.

The past few years have been fraught ones for the Supreme Court. First there was the brazen 2016 power play by Mitch McConnell and Senate Republicans in denying President Barack Obama’s nominee, Merrick Garland, the chance to take the seat vacated by the passing of Justice Antonin Scalia — an episode that left deep scars among Democrats. Trump’s appointment of Neil Gorsuch to the Scalia vacancy in 2017, and his subsequent confirmation, only deepened those tensions.

Now comes Brett Kavanaugh, whose nomination has been thrown into uncertainty following accusations from different women, one accusing Kavanaugh of sexual assault while in high school and another accusing him of exposing himself in college (allegations the nominee has denied). The prospect of Kavanaugh, along with another conservative justice accused of sexual harassment (Justice Clarence Thomas), teaming up with the rest of the Court’s conservatives to overturn Roe v. Wade looks like a powder keg.

“If Kavanaugh gets confirmed and then hears a major abortion case, you have this almost perfect storm of liberals getting a decision they don’t like and that being decided with two votes from men who were accused of sexual [wrongdoing],” says Michael Nelson, a political scientist at Penn State who studies public attitudes toward the judiciary. “That seems to be the sort of thing that could really hurt the Court.”

This sort of loss of faith in the court system isn’t inevitable, or even necessarily probable. But the fact that sober scholars are worried about the possibility, warning about potentially dire consequences for the US government, exposes yet another point of vulnerability for the American democratic system.

Is the Supreme Court in trouble?

When scholars talk about the Supreme Court’s “legitimacy,” they are talking about something more fundamental than job approval or whether the public agrees with the Court’s ruling in a specific case. They’re talking about the people’s faith in the very idea of the Supreme Court: the notion that it should be the final arbiter on political questions, the ultimate interpreter of the Constitution insulated from partisanship and politics.

This kind of basic faith in the Court’s mission is essential to its functioning. Liberal democracy is, in theory, premised on the idea that you can only govern with the consent of the governed. There’s an inherent tension between this vision and unelected judges setting law through rulings, one resolved only if the public believes that the Court is a legitimate decision-making body.

There are concrete consequences to a loss of Court legitimacy as well. Unlike Congress, which has control over the federal budget, and the president, who is commander in chief of the military, the Supreme Court has no way to actually enforce its edicts. It relies on compliance and enforcement from the other branches and local governments, which is less likely in a world where the public doesn’t broadly believe in the Court’s role in the system at a very basic level.

If the Court loses legitimacy, either with the public as a whole or with one particular party, then political actors might be tempted to ignore it — which has happened before.

In 1832, the Court ruled that a Georgia law regulating the local Cherokee nation was illegal, in violation of federal treaties with the tribe. State authorities ignored the ruling; so, too, did President Andrew Jackson, who had no faith in the Court’s legitimacy to rule on this issue and agreed with the state’s dim view of Cherokee sovereignty. No public uprising forced Jackson to comply, and the Court’s ruling basically became moot.

Today, the public’s basic faith in the Court’s legitimacy is much stronger than it was in Jackson’s time. On the survey questions political scientists use to measure legitimacy — things like whether the Court should be the final say on constitutional matters, or whether its powers should be curtailed — researchers find consistently high levels of public support for the court. A 2018 Annenberg poll, for example, found that 73 percent of Americans disagreed with the idea that “if the Supreme Court started making a lot of rulings that most Americans disagreed with, it might be better to do away with the Court altogether.”

On other measures, however, public faith in the courts is in modest decline. Gallup’s polling on the amount of “confidence” the public has in the Court shows fewer people expressing significant confidence in it and a rise in people expressing “some” confidence:

Chart of supreme court, public opinion Javier Zarracina/Vox

Political scientists generally do not see this as evidence that the Court is losing fundamental legitimacy. While the public may be less happy with the Court’s performance, or possibly less likely to trust it to do the right thing, they still generally do not think its role in the system is in jeopardy.

“The way the literature sees it now, it would take a lot to shake people’s faith in the Court,” says Sara Benesh, an expert on the Court at the University of Wisconsin Milwaukee.

What does “a lot” look like? One debate among scholars is whether a series of unpopular rulings could damage the Court’s legitimacy in the public’s eyes.

The traditional school of thought, led by Washington University’s James Gibson, holds that the outcome of cases typically has little effect on the public’s view of legitimacy. The public sees the Court as fundamentally different from Congress and less politically motivated, so even rulings they disapprove of don’t affect legitimacy as long as the process seems fair.

A more revisionist camp, led by George Washington’s Brandon Bartels and Duke’s Christopher Johnston, argues that the public’s view of legitimacy is closely linked to approval of its decisions: that the sense of the Court as a uniquely nonpolitical actor is not impervious to events, as the Gallup numbers might suggest, and that’s affecting the way the public see its rulings. If that’s true, then a few hugely unpopular or controversial decisions could on their own lead to a major hit to Court legitimacy.

The debate between the two sides revolves around fairly arcane methodological questions, like which measures of “legitimacy” are most accurate; scholars themselves remain deeply divided. That means there’s genuine uncertainty about just how insulated the Court is from public opinion. It could be the case that the Court’s legitimacy is relatively secure — or that it’s a few bad decisions away from collapsing, potentially precipitating a Jackson-style crisis in which political actors start to ignore Court decisions.

Enter Brett Kavanaugh, and the sexual assault allegations against him.

“The sort of thing that’s kryptonite for the Court”

The Kavanaugh controversy, which has raised the specter of partisan hearings over the details of sexual assault cases, makes the Court look like an extension of party politics in a profound and deep way.

“Most people don’t think about the Court that much. And when we’re the middle of a confirmation hearing ... that’s the sort of thing that directly links the Court to the direct political process,” says Nelson. “That’s the sort of thing that’s kryptonite for the Court.”

If senators and political parties politicize sexual assault, lining up on partisan sides to attack or defend Kavanaugh or his accuser, it might expose the degree to which the Court really has become a tool for partisan warfare — undermining trust in the legal process itself.

Now, we’ve had controversial hearings before, even over allegations of sexual harassment by a sitting justice — and the Court’s legitimacy survived. But American politics is profoundly different than it was in 1991, when Clarence Thomas was nominated to the bench.

Over the past several decades, the political parties have sorted into more unified liberal and conservative blocs. The decline of conservative Democrats and liberal Republicans, and the linking of partisan identity with social identities like race and religion, has made partisanship the most powerful force in American democracy.

The result has been an across-the-board decline in faith in neutral institutions. Everything is being seen through a polarized lens — not just the political branches but executive agencies and even federal law enforcement as well. There’s a growing trend in Americans identifying the quality of institutions with how well those institutions serve their partisan ends — a trend the Court has been (relatively) insulated from, but one that it might get looped into if the Kavanaugh confirmation proceeds as planned.

Experimental evidence suggests this is a fairly plausible outcome. Boston University’s Dino Christenson and David Glick conducted an experiment that showed some people evidence that the Court’s ruling upholding Obamacare was politically motivated, while withholding the same material from another group. The result: Conservatives who were given material showing that the ruling was political viewed the Court as significantly less legitimate compared to even other conservatives in the control group.

The more the Court becomes the center of partisan conflict, in short, the more people are likely to see it through a partisan lens. And that process is already happening, accelerated by the past three years in politics. It’s hard to overstate the effect of the 2016 Merrick Garland saga on the liberal psyche, in particular.

Republican senators blocking an Obama appointee, for obviously partisan reasons, convinced many Democrats that there are no impartial norms surrounding the Court. If Republicans were going to treat the Court as a purely political institution, many liberals began to suggest, then they needed to as well. Gorsuch’s quick confirmation in the spring of 2017, and Justice Anthony Kennedy’s retirement a little over a year later, kept the wounds fresh.

So Democrats came into the Kavanaugh nomination primed for partisan warfare. And then it turned out his nomination touched on some of the most polarizing issues in modern politics — with consequences that could, if he is confirmed, redound on the Court for years.

Here you have a man accused of sexual assault, nominated by a president who has been accused of several sexual assaults, to serve on a Court that already has a justice who has been accused of sexual harassment. This, in and of itself, would likely damage the perception of the court in the #MeToo era (at least among Democrats and people on the broader left).

But when you combine that with the fact that this Court could plausibly overturn Roe v. Wade — the most cherished victory of the American feminist movement — you have a recipe for a legitimacy crisis.

There are already signs of this happening. Almost immediately after Kennedy announced his retirement, prominent liberals and leftists started calling for the next Democratic Congress to pack the Court — meaning expanding its membership from nine to 11 (or more) to create a new liberal majority. Kavanaugh on the Court, and the 5-4 rulings on charged topics that might ensue, will likely intensify such calls. This could spell doom for the public’s faith in the Court’s separation from the political process — and, thus, for the Court’s legitimacy.

“Overturning Roe v. Wade itself would do something damaging to the Court’s standing,” says Benesh. “Pile on top of that a Justice Kavanaugh in the majority and it might put it over the edge.”

There’s no guarantee that this happens, of course, but it’s in play. It’s very possible that the Trump era could end up undermining one of the pillars of American democracy — as it has done with so many other parts already.