The Washington PostDemocracy Dies in Darkness

The minoritarian third of the Supreme Court

Justices pose at the Supreme Court in Washington, D.C. (Erin Schaff/AFP/Getty Images)
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The Supreme Court seems likely to significantly scale back access to abortion when it rules on a Mississippi law that sharply limits the procedure — if the court doesn’t overturn Roe v. Wade entirely. That’s a function of the court’s shift to the right following the confirmation of its three most recently added justices, the three added by President Donald Trump during his term in office.

The three, it turns out, nominated by a president who lost the popular vote and confirmed by senators representing less of the country’s population and who had received fewer cumulative votes than those who opposed the nominations.

This is a body that’s unusually intertwined with the institutions most likely to disproportionately award power to political minorities: the electoral college and the Senate. Trump’s election in 2016 was a function of his narrow victory margins in three states that gave him an electoral vote majority despite losing the popular vote. The Senate similarly rewards less populous, more rural — and more Republican — states with disproportionate power. Combined, we get a situation like the current court.

There are nine sitting justices, four of whom were confirmed by large majorities in the Senate. Another four — Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — received fewer than 55 votes for confirmation.

Only those latter three, though, were nominated by a president who didn’t win the popular vote. Stephen G. Breyer was nominated by Bill Clinton in 1994, after Clinton won only 43 percent of the popular vote, but that was a function of the strong third-party candidacy of Ross Perot. Even Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr. were appointed by a president who won the popular vote: George W. Bush, after Bush won his reelection bid in 2004.

In part because of the closeness of the votes for Thomas, Gorsuch, Kavanaugh and Barrett and in part because Democratic states tend to be more populous, all four of those justices were confirmed with the approval of senators representing a minority of the population. Alito, confirmed with 58 votes, was fairly close on this metric.

It’s a somewhat squishy way to evaluate support, though. If one senator from Florida supports the nomination and the other opposes it, the state’s total population is assigned to both sides of the equation.

So we can look at it another way: the total number of votes cast for the senators supporting and opposing each nomination. Here, the same pattern unfolds: More people voted for the senators who opposed Trump’s appointees than for the senators who supported them. (This includes only votes cast in elections, so those who voted on nominations after appointments are not included. It also allocates votes for the two independent senators to Democrats.)

Thomas was nominated by a president who won his seat handily but confirmed by a Senate representing a minority of the popular will and a minority of the population. Trump’s appointees were nominated and confirmed by minorities.

This is how the system works, as supporters of the Trump nominees will rush to tell you. The system allows for power to be weighted to rural states in the electoral college and the Senate for various reasons, not all of them convincing. But it doesn’t change that the justices are a product of the will of the minority.

We have to note the uniqueness of Gorsuch’s position, of course. In 2016, the Republican majority in the Senate declined to consider President Barack Obama’s nominee for the position that Gorsuch would eventually fill. That minority was a function of a Republican majority that had received 45 percent of the votes won by senators and that represented 47 percent of the country’s population.