The Supreme Court Has Lost its Democratic Legitimacy

Mechanisms the Founding Fathers put in place inorder to convince the original states to sign off on the U.S. Constitution - and because of their fear of a true democracy as embodied in the Electoral College and the original manner Senators were elected - are now tearing America apart by allowing minority rule by rural/reactionary small low population states.  This has lead to a growing democratic illegitimacy which has now consumed the U.S. Supreme Court which as currently composed is little more than an arm of the Republican Party that is pandering to the demands of the most extreme elements of the Republican Party base.   If Roe v. Wade is overturned, it is merely a matter of time before carefully engineered cases will work their way to the Supreme Court to set the stage for the overturning of cases on everything from contraception - a long time target of Christofascists - to same sex marriage and perhaps even interracial marriage.  The GOP Christofascist/white supremacist base wants these rights erased and Alito's draft opinion provides a road map for reversing past decisions that expanded rights to non-white, non-Christian, and Non-heterosexual  members of society.  A column in the New York Times looks at the tyranny of the minority now squarely faces the nation and how the U.S. Supreme Court's legitimacy is but one of the casualties.  Here are column highlights:

The country is divided. There are those Americans furious that the Supreme Court is soon to take away the right to have an abortion. And there are those Americans furious that someone leaked that the Supreme Court was soon to take away the right to have an abortion.

Among those Americans angry with the anonymous leak of Justice Samuel Alito’s draft opinion overturning Roe v. Wade is the entire Republican Party. . . . the Supreme Court, right now, is an avowedly partisan institution, an unaccountable super-legislature controlled by men and women drawn from a cadre of conservative ideologues and apparatchiks, acting on behalf of the Republican Party and its allies. Whatever legitimacy it had retained was sacrificed in the drive to build the majority that seems poised to overturn Roe v. Wade and open the floodgates to harsh restrictions on the reproductive autonomy of millions of Americans.

When McConnell led the Senate Republican caucus in a blockade of President Barack Obama’s nominee for the Supreme Court in 2016 and then killed what remained of the judicial filibuster the next year to place Neil Gorsuch in the seat instead, they diminished the legitimacy of the court. When those same Republicans looked past a credible accusation of sexual assault to confirm Brett Kavanaugh in 2018, they again diminished the legitimacy of the court. And when, with weeks left before the 2020 presidential election, Republicans ignored their own rule from four years earlier — that an election-year vacancy “should not be filled until we have a new president” — to place Amy Coney Barrett on the bench in a rushed, slapdash process, they once more diminished the legitimacy of the court.

[T]he court’s conservatives have done almost nothing to dispel the view that their majority is little more than the judicial arm of the Republican Party. They use “emergency” orders to issue sweeping rulings in favor of ideologically aligned groups; they invent new doctrines designed to undermine voting rights protections; and as we’ve just witnessed, they’ll let nothing, not even 50 years of precedent, stand in the way of a sweeping ideological victory.

No discussion of the Supreme Court’s legitimacy, or lack thereof, is complete without mention of the fact that its current composition is the direct result of our counter-majoritarian institutions. Only once in the past 30 years — in the 2004 election — has anything like a majority of the American electorate voted for a president who promised a conservative Supreme Court. The three members who cemented this particular conservative majority — Gorsuch, Kavanaugh and Barrett — were nominated by a president who lost the popular vote and were confirmed by senators representing far fewer than half of all Americans.

Americans have always acted as if the popular vote conveys democratic legitimacy. . . . It matters whether a president has democratic legitimacy. Donald Trump did not. But rather than act with that in mind, he used his power to pursue the interests of a narrow ideological faction, giving its representatives free rein to shape the Supreme Court as they saw fit. The court, then, is stained by the same democratic illegitimacy that marked Trump and his administration.

Republicans seem to know this, and it helps explain why they’re so angry about the leak. They hope to write conservative ideology into the Constitution. For that to work, however, Americans need to believe that the court is an impartial arbiter of law, where each justice uses reason to come to the correct answer on any given issue of constitutional interpretation.

The leak throws that out the window. The leak makes it clear that the Supreme Court is a political body, where horse-trading and influence campaigns are as much a part of the process as pure legal reasoning.

If the court is a political body — if it is a partisan body — then a roused and unhappy public may decide to reject its judgments and authority. That public may ask itself why it should listen to a court that doesn’t heed its opinion. And it may decide that the time has come to reform the court and dismantle the ill-gotten majority that conservatives worked so hard to create.