With 'Crisis of Legitimacy,' Rethinking the Supreme Court

      The transformation of the Supreme Court after the seating of two conservative justices in bitterly fought confirmation battles has generated anguished talks on the political left about possible reforms to depoliticize the Court. Despite reformers' earnest attempts, however, the smorgasbord of ideas discussed at a program sponsored by the liberal American Constitution Society (ACS) last week [Oct. 25] seem unlikely to be adopted or, even if adopted, to reduce the level of political conflict currently surrounding the Court.
      Even before Justice Brett Kavanaugh's historically narrow two-vote confirmation, public confidence in the Supreme Court was sagging to the point that Jeffrey Rosen, director of the National Constitution Center, asked whether the Court is facing a "crisis of legitimacy." Rosen noted in a recent podcast that a Gallup survey in early July found only 37 percent of respondents expressing high confidence in the Court: that figure has been below 40 percent for a decade, but traditionally higher all the way back to the early 1970s.
      The proposals for "reforming the Court" discussed at the ACS event by three longtime law professors and one veteran of the political world range from the simple and straightforward to complex and indirect. As one example of the former, Amanda Frost, a professor at American University's Washington College of Law, suggested requiring more than a one-vote margin to overturn a law passed by Congress or a state legislature. This longtime Court watcher can recall that idea from as far back as the 1950s, but it has never advanced beyond idle political science-type talk. One possible variation could be to require a supermajority to overturn a precedent
      By way of a more complicated reform, Ganesh Sitaraman, a professor at Vanderbilt Law School, pointed to proposals for a radical change in selecting the Supreme Court's personnel. These proposals envision a random lottery among federal appeals court judges to select the judges who would comprise the "one Supreme Court" specified in the Constitution. Another, more complex proposal envisions a Court deliberately engineered to maintain a partisan balance, with five justices appointed by Republican presidents, five by Democratic presidents, and five additional members selected with mutual agreement by both blocs. Sitaraman saw the benefit of either of these proposals as reducing the "cult of personality" around any individual justice.
      The panelists largely steered clear of two of the simplest and currently most often discussed reforms: term limits and changing the size of the Court. Some on the political left have been talking up the possibility of "packing the Court" in effect as a response to the Republicans' obstruction of President Obama's nomination of Merrick Garland in Obama's final year in the White House.
      Frost set the tone for the ACS panel by saying early on that she was "no fan" of either term limits or packing the Court. In any event, Democrats would pursue a change in the size of the Court only after hypothetically gaining control of both Congress and the White House after the 2020 elections. And, as evident political retaliation, a move to enlarge the Court to enable a Democratic president to appoint additional justices to change the Court's ideological balance of power moves in exactly the opposite direction of seeking to depoliticize the Court.
      Term limits for the justices have a bipartisan pedigree of sorts: law professors supporting the idea include some from the left and some from the right, for example, Steven Calabresi, co-founder of the Federalist Society. Supporters argue that fixed 18-year limits for active service on the Court would reduce the political stakes on any individual nomination by ensuring another vacancy two years afterward. In his remarks, however, Sitaraman suggested instead that term limits could make political problems worse. "It would mean that every election would be about the Supreme Court," he said.
      With structural changes such as these under consideration, some Court watchers see the politicization of the Court as the inevitable result of what many on both the right and the left consider the Court's outsized role in setting legal policy on contentious. "You need to depower the Court," the University of Chicago law professor Aziz Huq remarked at the ACS panel.
      David Kaplan, a longtime journalist and author of the new book The Most Dangerous Branch , laments what he, as a self-identified liberal, calls the Court's "aggrandizement of power" stretching from Roe v. Wade through Bush v. Gore and the Roberts Court. Barry McDonald, a professor at the generally conservative Pepperdine Law School, wrote in a New York Times op-ed that the Court has "lost sight of its limited role and the principle of judicial neutrality."
      At the ACS panel, Huq blamed liberals and progressives for relying too much on the courts. Yet in the past decade conservatives have also been quick to resort to courts. Senate Republican leader Mitch McConnell was in fact the named plaintiff in the first, unsuccessful attempt to gut the McCain-Feingold campaign finance reform. That effort eventually succeeded in the Citizens United case. Gun rights advocates made no serious attempt to repeal the District of Columbia's handgun ban before the Second Amendment challenge that ended with the Heller decision in 2008.
      However improbable the proposals for structural changes may be, it may be even more unlikely to rein in the Court's overarching role in legal and constitutional policy. In a system with a written Constitution, a written Bill of Rights, and a history of judicial review, rights-claiming parties will eventually find their way to the highest Court and the justices drawn into political conflict however they rule.

In Georgia, Voter Suppression Seen in Governor's Race

      Welcome to the not-so-great state of Georgia, where a political candidate fox is running for governor while also supposedly protecting the integrity of the ballot box henhouse. Brian Kemp, the white Republican who superintends Georgia's election laws as secretary of state, is in a fiercely contested, racially charged contest for the governorship pitted against Stacey Abrams, the Democratic nominee who could be the state's first African American governor.
      Abrams' shot at the governorship in a red state attests to the changing demographics that have already started to turn some states from red to purple and to the strength of the anti-Trump blue wave even in states that Trump carried by substantial margins. With the Nov. 6 election now within sight and early voting already under way, the most recent poll shows Kemp with a statistically insignificant edge over Abrams: 47 percent to 46 percent, according to the Reuters/University of Virginia Center for Politics survey.
      In a race like that, every vote counts: so too every potential vote suppressed because of restrictive or inhospitable election procedures. Georgia was one of those states under special federal supervision for nearly 50 years because of its history of racial discrimination against would-be African American voters. Freed from the Voting Rights Act's preclearance requirement thanks to the Supreme Court's shamefully oblivious decision in Shelby County v. Holder (2013), Georgia has now adopted all of the second-generation devices used to suppress voting among racial and ethnic minorities.
      Despite the evident political conflict of interest, Kemp has refused pleas that he should resign as secretary of state or recuse himself from election procedure issues while he himself is on the statewide ballot. In an ordinary race or in other times, his stance might pass an ethical smell test, but not in the current partisan divide created by Republican-backed vote-suppression measures in Georgia and so many other red states.
      In the most dramatic example of voter suppression, Kemp's office supervised the purging of some 591,000 Georgians from voters rolls in summer 2017. Like other GOP election officials, Kemp refers to wholesale deregistrations as "voter list maintenance," ostensibly aimed at removing voters who have moved or passed away. A journalistic investigation showed, however, that a substantial number, around 107,000, were removed for not voting —  in arguable disregard of federal law.
      Ohio's Republican secretary of state Jon Husted was hauled into federal court and eventually to the Supreme Court for his aggressive voter purges. The Roberts Court, in its 5-4 decision in Husted v. A. Philip Randolph Institute in June, divided along partisan lines in upholding Husted's policies of initiating deregistration based on a voter's failure to vote in two successive federal elections. The applicable federal law specifies that states may not remove a voter based solely on failure to vote.
      Like Husted, Kemp follows a "use it or lose it" policy in initiating deregistration that, according to an investigation by American Public Media Reports, has disproportional impact on black voters. The APM investigation found that in six out of ten Georgia counties, black voters were removed at higher rates than white voters.
      Kemp is also now overseeing local election officials in enforcing a newly enacted Georgia law that blocks a would-be voter's registration if the applicant's information fails to perfectly match information from other sources: as inconsequential, for example, as a misspelled name or incomplete address. Some 53,000 registrations are on hold as a result: Kemp promises that the would-be voters can cast provisional ballots, but evidence from other states indicates that few voters who cast provisional ballots make the later trip needed to have their ballots counted.
      Georgia is also one of the red states to have passed restrictive voter ID laws, ostensibly aimed at the all-but-nonexistent problem of voter fraud by impersonation. In the current election, Democrats and voting rights groups have cried foul over the rejection of hundreds of absentee ballots in the minority-heavy Gwinnett County, outside Atlanta. To top it off, local election officials have closed some 214 precincts over the past six years — amounting to nearly 8 percent of the state's polling places — making it that much harder in some counties for would-be voters to cast ballots.
      Imagine, as the most dramatic example, Florida with a less punitive felon-disenfranchisement law on the books in 2000: among the 1 million-plus disenfranchised Floridians, a vote swing of fewer than 1,000 votes could have changed the course of history. In a concrete case, Wisconsin's strict voter ID law has been shown to have suppressed perhaps up to 200,000 votes in the Badger State: more than enough to have offset Donald Trump's 23,000-vote margin over Hillary Clinton in the 2016 election. In advance of the election, one Republican legislator openly boasted that the law "could make a difference."
      Strict voter ID laws held down the vote in other states as well, with results less easily to hypothesize. Again, the Supreme Court has given its ill-considered blessing to this voter-suppressive device. The 6-3 decision upholding Indiana's law Crawford v. Marion County Board of Election (2008) accepted with too little questioning the premise that photo IDs were needed to protect election security. In the years since, evidence — notably, in a Texas case — has shown that voter ID laws have disproportionate impact on racial and ethnic minority voters. The wheels of election law justice grind all too slowly, however, allowing Republicans, as in Georgia, to exploit these tactics as part of a truly un-American political strategy.

In Death Penalty Cases, Race Still Matters

      Race has always played an imortant role in capital punishment in the United States and still does, according to contemporary evidence from death penalty challenges in two states. The two studies, one from Oklahoma and the other from Washington, both show that black defendants convicted of killing white victims are more than twice as likely to be sentenced to death as white defendants convicted of killing white victims.

      The Supreme Court was presented similar evidence three decades ago, but refused in McCleskey v. Kemp (1987) to take the logical Equal Protection Clause step in a death row challenge by a Georgia inmate. The 5-4 ruling, criticized by legal scholars as one of the Court's worst twentieth-century decisions, discounted a statistical examination of 2,500 murder cases in Georgia as showing no evidence of racial bias specifically in McCleskey's case. 

      In a unanimous decision this week, however, the Washington Supreme Court relied on statistics from a much smaller study to strike down the state's death penalty law on the ground that it was "imposed in an arbitrary and racially biased manner." The ruling  in State v. Gregory [Oct. 11] set aside the death sentence imposed on an African American defendant, Allen Eugene Gregory, for the home-invasion rape-robbery-murder of a white woman in 1996.

      In her opinion for the court, Chief Justice Mary Fairhurst cited statistical evidence from 1981 through 2014 that black defendants were between 3.5 and 4.6 times as likely to be sentenced to death after capital sentencing hearings as non-black defendants after other variables were taken into account. The authors of the study found no more than an 11 percent chance that what they called "the observed association between race and the death penalty" could have resulted from random chance rather than true association.

      In Oklahoma, the state's Court of Criminal Appeals refused to consider a similar statistical study as part of its decision in August 2017 to reject a similar challenge by an African American death row inmate on procedural grounds. Tremane Wood had been sentenced to death in 2004 after his conviction in a racially charged trial of killing a white man who had set up a New Year's Eve sexual assignation with the mother of Wood's son. 

      Wood relied in his third post-conviction challenge on a study, published in April 2017, that showed capital defendants in Oklahoma cases with white victims more than twice as likely to be sentenced to death as defendants in cases with non-white victims. The Oklahoma court had already refused to consider the study in an earlier case and devoted less than three full pages to reject Wood's plea.  

      Wood's case now gives the Supreme Court a chance for a do-over on McCleskey. In a petition for certiorari filed in November 2017, Wood's lawyers argued that the study showed that Oklahoma juries are "significantly more outraged when white lives are lost than when nonwhite lives are forfeited." That kind of "race-based discrepancy," the lawyers argued, "is repugnant to both modern societal mores and to the United States Constitution."

      In their response, the state's lawyers went beyond arguing procedural default on Wood's part to attack the study in their words as "fatally flawed." The study was incomplete, the state's lawyers argued, because it did not take into account all of eight of the aggravating circumstances listed in the state's death penalty law. The justices have shown no interest so far: the case, Wood v. Oklahoma, 17-6801, was listed for the justices' conference on March 2 and has been rescheduled 15 times since then with no action yet.

      With the decision in Gregory, Washington became the twentieth state to eliminate capital punishment. The state was already observing a moratorium on executions imposed by Gov. Jay Inslee in 2014 and had been a laggard in capital punishment even earlier, with only five executions since 1987. The state's death row housed only eight inmates, whose sentences were reduced to life imprisonment under the court's ruling. 

      In contrast to Washington, Oklahoma has been one of the leading death penalty states, with 112 executions carried out since 1990 — the third largest number of any state after Texas and Virginia. Forty-nine inmates now await execution, but the state imposed a moratorium in 2015 a year after a widely criticized botched lethal injection execution. The convicted murderer Clayton Lockett was pronounced dead of a heart attack 43 minutes after the execution began only after visibly and audibly struggling and writhing in what his lawyer described as akin to torture.

      Lockett was administered a sedative, midazolam, that has been criticized in successive Eighth Amendment challenges as failing to render an inmate unconscious during the final stages of a lethal injection execution. The Supreme Court refused to disallow the procedure, however, in an Oklahoma case, Glossip v. Gross (2015),  that followed Lockett's execution. 

      Four terms later, the Court is still not moved to step in to ensure humane executions. The justices rejected a similar challenge to the use of midazolam in a decision last week [Oct. 11] to deny a stay of execution sought by a Tennessee inmate, Edmund Zagorski. In a dissent, Justice Sonia Sotomayor, joined by Justice Stephen G. Breyer, said the hands-off decision amounted to "complicity in state-sponsored brutality." Sadly, the inaction in Wood's case implicates the justices as well in the racial bias all too evident in the United States' flawed death penalty machinery.

No Mandate for Supreme Court to Turn to Right

      The Supreme Court that takes the bench on Tuesday [Oct. 9] will have the weakest political mandate of any group of justices in U.S. history. But with a conservative majority solidified by the razor-thin confirmation of Brett Kavanaugh, the Court is poised to make fundamental changes in American law more rapidly than at any previous time in the Court’s history and to test public confidence in the Court's legitimacy and impartiality.
      With Kavanaugh’s confirmation, the Court now includes four justices appointed by Republican presidents who gained the White House despite losing the popular vote: two named by President George W. Bush, after his popular-vote majority re-election in 2004, and now two chosen by Donald Trump. With no popular mandate, Trump in his two appointments and Bush in one followed the Republican model set by Richard Nixon in the 1960s by pushing the partisan envelope on Supreme Court appointments as far as the political system would tolerate.
      Kavanaugh joins three other justices who won Senate confirmation in narrow roll-call votes and, according to one political scientist’s calculations, from senators representing a minority of American voters. The Court may have been intended in the constitutional system to play a countermajoritarian role to some extent, but the Constitution envisions that the justices with that power be nominated and confirmed by political branches responsive to public sentiment.
      Here are the figures, according to Trinity College political scientist Kevin McMahon, from his article “Will the Supreme Court Still 'Seldom Stray Very Far'?: Regime Politics in a Polarized America,” in Chicago-Kent Law Review:
      * Clarence Thomas, nominated by the popular vote-majority president George H.W. Bush and confirmed by a Democratic-majority Senate by a 52-48 vote. Those 52 senators, including 11 Democrats from southern states with substantial African-American constituencies, had been elected with 43.2 million votes; senators voting no had been elected with 46.1 million votes (48.33 percent to 51.67 percent).
      * Samuel A. Alito Jr., nominated by George W. Bush in his second term and confirmed by a 58-42 Senate vote. Senators voting to confirm had been elected with 56.3 million votes; senators voting no had been elected with 61.1 million votes (47.95 percent to 52.05 percent).
      * Neil M. Gorsuch, nominated by Trump after his 2.9 million popular vote loss to Hillary Clinton and confirmed by a Republican-majority Senate in a 54-45 vote. In Gorsuch's case, senators voting against his confirmation had a substantial popular-vote edge over those supporting his confirmation: 73.4 million to 54.1 million (57.6 percent to 42.4 percent).
      In advance of Saturday's historically narrow confirmation [Oct. 6], the Washington Post’s Philip Bump provided a similar analysisby adding up the total populations represented by senators planning to vote for and by senators planning to vote against Kavanaugh. Senators voting no represented a majority of Americans: 55.8 percent, compared to the 44.2 percent of the populace represented by Kavanaugh's supporters.
      Kavanaugh has an added distinction, unlikely to be noted at his retirement ceremony several decades in the future. Nominated by a historically unpopular president, Kavanaugh is the most unpopular Supreme Court nominee in the history of modern polling. Bump cited an NPR-PBS NewsHour-Marist poll taken days earlier that found 40 percent of respondents supporting the nomination compared to 52 percent opposed.
      A CNN poll taken in August found a narrow plurality opposed to his nomination: 37 percent in favor compared to 40 percent opposed. Kavanaugh was the only justice to be under water shortly after his selection; he even fared unfavorably in comparison to the unsuccessful nominees Robert Bork and Harriet Miers, who both had positive ratings at comparable points in the process. Merrrick Garland, President Obama’s obstructed Supreme Court nominee in 2016, had a substantial positive rating: 52 percent in favor, 33 percent opposed.
      Among the Republican senators supporting Kavanaugh, Texas’s personally repellent Ted Cruz coupled his endorsement with a recycled denunciation of policy decisions being made by “unelected judges.” Cruz cited no examples, but he almost certainly was not thinking of the various Roberts Court decisions gutting campaign finance laws, such as Citizens United, or any of the pro-business, anti-consumer decisions crafted by 5-4 majorities.
      As successor to the generally conservative Anthony M. Kennedy, Kavanaugh will slide comfortably into lineups such as those; he signaled his pro-business views and his doubts about campaign finance laws in 12 years on the D.C. Circuit. In contrast to Kennedy, however, he may provide the needed fifth vote either to overrule or sharply restrict Roe v. Wade despite calling it an “important” precedent. Based on his vote to strike down a ban on assault weapons, Kavanaugh is also a likely vote for expanding Second Amendment rights beyond the narrow holding in Heller 10 years ago.
      Decisions along those lines by five unelected justices would be in defiance of public sentiment. The most recent poll indicates that three-fourths of Americans oppose overruling Roe v. Wade. On assault weapons, 70 percent of those polled favor stricter laws. And several polls indicate public concern about the Roberts Court’s pro-business orientation. With public confidence in the Court already slipping, Kavanaugh’s ascension as the Court’s fourth minority justice may embolden an activist conservative majority to put public confidence at greater risk unless Chief Justice John G. Roberts Jr. keeps them in check.