Could Brett Kavanaugh’s nomination undermine the public standing of the Supreme Court? Observers such as the Atlantic’s Ron Brownstein think so. “Every time [Chief Justice John] Roberts would lean on Kavanaugh to construct a majority,” Brownstein writes, “the chief justice could further erode the Court’s already eroding public confidence.”
In general, public support for the court tends to be relatively stable. But this time could be different. Increased ideological and partisan divisions and pressure from the #MeToo movement could dent the court’s image, especially since the coalition backing the prospective new justice has such narrow support.
1. Public views of the court tend to be positive and stable
In the past, the court has typically weathered potential challenges to its public standing. Even the pitched battle to confirm Justice Clarence Thomas in 1991 and the court’s controversial 5-4 decision in Bush v. Gore didn’t have much effect on public confidence in the institution.
Even today, about two-thirds of Americans express a favorable view of the court — far more than for Congress or the federal government.
2. A sharply divided court could dent its public standing
But if the Senate confirms Kavanaugh, public perceptions of the court could shift.
First, Kavanaugh’s confirmation will divide the court along ideological and partisan lines, pitting four liberal justices nominated by Democratic presidents against five conservative justices nominated by Republicans. The public does not follow the court closely, but with many 5-4 decisions likely, Americans will get clearer cues about its partisanship and ideology than they have in the past.
Second, the #MeToo movement could shake up public attitudes toward the court. Thomas was confirmed in an era of vastly different gender politics and communications technology than we have today. As a result, the salience of sexual harassment allegations faded after he joined the bench in a process that is unlikely to be replicated today. In particular, with a record number of women running for office, mostly as Democrats, the controversy over Kavanaugh is likely to continue even if he gets confirmed.
3. Kavanaugh would be another “minority” justice
A post-Kavanaugh conservative majority could be vulnerable to a political backlash for a less-appreciated reason. Both Kavanaugh, if confirmed, and Neil M. Gorsuch, Trump’s first appointee to the court, can be considered “minority” justices — judges who were nominated to the Supreme Court by a president who lost the popular vote and would be confirmed by senators representing a minority of Americans.
Of course, the framers designed the court to be “counter-majoritarian,” meaning that it often sides with individuals or principles over popular majorities. However, the court derives some democratic legitimacy from each justice being nominated by an elected president and confirmed by a majority of elected senators. Just this week White House press secretary Sarah Huckabee Sanders accused Democrats of “trying to undercut the voice of the American people when they elected Donald Trump.”
But the breadth of support that Kavanaugh and Gorsuch enjoy is uniquely narrow. First, Trump famously lost the popular vote. In addition, because each state gets two votes in the Senate, regardless of population, the confirmation process overweighs the views of voters in small states, where Republicans tend to dominate. As a result, when the Senate confirms Kavanaugh with support from every Republican present plus one Democrat (which futures markets consider the most likely outcome), a majority of Americans will have had their Senate representatives oppose both Trump nominees.
This scenario is projected in the figure below, which illustrates that no other nominee since 1981 has been put forward by a president who lost the popular vote and confirmed by votes from senators representing a minority of the American public. Kavanaugh and Gorsuch would be outliers in the contemporary era.
Entrenching a party-line Supreme Court majority on such a narrow base of support could disrupt or politicize the otherwise largely stable approval of the court and even threaten its legitimacy. If voters view the justices as partisan or ideological warriors who are out of step with majority opinion, the court’s public standing could start to fracture along partisan lines.