Comment: Majority of public losing say in federal courts’ makeup

By David Singh Grewal, Joshua P. Zoffer / Special to The Washington Post

Democratic former vice president Joe Biden and Senate Majority Leader Mitch McConnell, R-Ky., don’t agree on much. But they both say that judicial nominations should reflect the people’s will.

In last month’s presidential debate with President Trump, addressing the pending Supreme Court nomination of Judge Amy Coney Barrett, Biden said “the American people have a right to have a say in who the Supreme Court nominee is.” McConnell used similar rhetoric in 2016, arguing that his refusal to hear Judge Merrick Garland’s Supreme Court nomination by President Barack Obama would “let the American people decide.”

The American people, of course, do not vote directly for the federal judges and justices who interpret their Constitution. But in theory, the Constitution’s machinery imbues the selection process with popular input; Americans do vote for the president who nominates judges, and they vote for the senators who confirm them. This careful design reflects the underlying premise on which both Biden’s and McConnell’s positions rest: The choice of Supreme Court justices, and other life-tenured federal judges, ought to reflect the people’s will to maintain democratic legitimacy.

But that machinery isn’t working. The judiciary should at least indirectly reflect democratic will. Increasingly, it doesn’t.

A straightforward way of judging the popular support a judge enjoys is to consider the popular support behind the elected officials who put them on the bench. If the votes received by senators voting for a judicial nominee in their most recent elections total less than the votes received by senators voting against the nominee, our constitutional machinery has failed to approximate democratic support. Our forthcoming study of more than 3,400 federal judicial nominations over the past century suggests an unprecedented and growing share of the judiciary is “minoritarian” by this measure.

And, if Barrett ascends to the Supreme Court, minoritarian judges will for the first time hold a majority of the high court’s seats. As political scientist Kevin McMahon has written, Justices Neil Gorsuch, Samuel Alito Jr. and Clarence Thomas were all confirmed by a majority of senators who collectively received fewer votes than the senators who voted against them. The same applies to Justice Brett Kavanaugh, and Gorsuch and Kavanaugh hold the additional distinction of nomination by a president who failed to win the popular vote, untethering them entirely from any claim to majoritarian imprimatur. If Barrett’s appointment unfolds as expected — a near-party-line vote — she will fall into the same category.

This democratic deficit is not limited to the Supreme Court. Our study of nearly all federal judges appointed since the entire Senate became directly elected in 1919 reveals that there are now more than 60 sitting minoritarian judges. This phenomenon was still relatively rare until Trump took office. Since then, the floodgates have opened. The combination of small-state overrepresentation in the Senate, geographic clustering in blue-state urban centers, the demise of the filibuster for judicial nominees and intensifying partisanship have led to an unprecedented number of minoritarian judges — about 60, according to our findings — confirmed under Trump.

Minoritarian judges are most concentrated in the most consequential courts: More than half sit on the Supreme Court or federal appeals courts.

Jurists and scholars have spent decades debating whether a judiciary with the power of “judicial review” — the ability to overturn legislation passed by elected representatives — can be reconciled with democracy. As Alexander Bickel famously put it: “When the Supreme Court declares unconstitutional a legislative act or the action of an elected representative, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it.” The rise of a minoritarian judiciary makes this tension essentially intractable; and makes it far harder to credit McConnell’s supposed deference to the people.

Answers to this quandary have taken three main forms: The first has been to justify counter-majoritarian judicial action on the grounds that it reinforces underlying democratic processes by making sure all Americans are genuinely included in political decision-making. Cases enforcing voting rights, such as Harper v. Virginia State Board of Elections and South Carolina v. Katzenbach, are paradigmatic examples of this approach. In Harper, the high court struck down Virginia’s poll tax as unconstitutional, while in Katzenbach it upheld the constitutionality of preclearance rules under the Voting Rights Act of 1965.

But it’s hard to believe the carefully chosen nominees of a political minority will be committed to reining in the minoritarian structures that brought them to the bench in the first place. Indeed, in recent years, the Supreme Court has begun to whittle away at the Voting Right Act’s mandate.

A second response, popular among political scientists and court watchers, has been to wave the problem away by claiming that the Supreme Court tends to be responsive to public opinion. Advocates of this position point to the court’s evolving jurisprudence on LGBT rights and (narrow) votes to uphold the Affordable Care Act as instances of this broad alignment between popular will and judicial decision-making. But there is less reason to suppose a minoritarian judiciary — in an era of intense political polarization and, if Barrett is confirmed, acting with a wider 6-to-3 conservative majority — will be compelled to rule according to popular will.

A final response has been to acknowledge the irreconcilability of judicial review with democracy. This view has gained popularity in recent months, spawning efforts to pare back the court’s powers. As law professors Ryan Doerfler and Samuel Moyn argue, “The problem is not who serves on the Supreme Court but what power it has,” making their case that more legislative power, relative to the court’s power, is preferable.

Elected officials may have political motivations for placing themselves on the side of the people when it comes to majoritarian rhetoric (though the numbers lend Biden’s stance greater credibility). But however they arrive at their stated positions, they’re right: The people should have more control over the composition of courts that govern ever-expanding portions of their lives.

The growing unrepresentation of America’s courts has helped fuel the resurgence of reform proposals, including court-packing, and contributed to the growing contentiousness of Supreme Court nominations. Though the best path forward remains up for debate, it should reflect the people’s will. Court reform for the sake of democracy becomes all the more urgent when faced by the prospect of a minoritarian majority on the Supreme Court.

David Singh Grewal is a professor at the University of California at Berkeley School of Law. Joshua P. Zoffer is a recent Yale Law School graduate and an RAAI fellow at New America.