Save the Supreme Court and democracy

11 Aug 2022
Vol 377, Issue 6607
p. 693
The US Supreme Court has been busy. It recently overturned a nearly 50-year-old precedent protecting abortion rights, upheld the right to carry guns outside the home, and hamstrung the Environmental Protection Agency’s ability to regulate emissions—all while signaling an aversion to contemporary empirical evidence and instead favoring “history and tradition.” Although the majority of Americans disagree with many of these decisions, the court has only just begun to reshape the country. When it resumes in October, the court will be poised to outlaw affirmative action, undercut federal regulations regarding clean water, and possibly allow state legislatures to restrict voting rights without oversight by state courts. What explains the court’s shift to an ideological extreme, and what can be done about it?
The court’s eye-popping move to the conservative right is confirmed by research that compares its decisions to public opinion. Decades-long surveys reveal that the court’s rulings were in step with the opinions of most Americans through 2020. However, around 2021, its views on important issues (including abortion and religion) swerved to the right of those held by a majority of the public—and are now more aligned with the views of Republican voters. This sharp turn coincided with the 2020 death of Ruth Bader Ginsburg, a liberal-leaning justice.
The shift can be best understood by looking at the identity of the court’s ideological “median voter.” In considering the nine Supreme Court justices from most liberal to most conservative, the justice who sits in the median fifth position is the one whose vote will create a five-person majority in many cases. This gives the median enormous power over decisions. In 2018, the median justice was Anthony Kennedy, a moderate conservative but also an occasional cross-over voter on issues such as abortion and capital punishment. Upon retiring that year, he was replaced by staunch conservative Brett Kavanaugh, shifting the median rightward to Chief Justice John Roberts. As the median, Roberts would have kept the court more or less in line with the American ideological mainstream. However, when Ginsburg was replaced by conservative Amy Coney Barrett, the median moved further to the right—somewhere around Kavanaugh or Neil Gorsuch. Although Roberts could be considered center-right, new medians Kavanaugh and Gorsuch are firm conservatives. By some estimates, Gorsuch is more conservative than around 85% of Americans.
Such a shift matters because public perception of the court’s ideology is critical. If people think the court is ideologically opposed to them, they will be more likely to think that it is acting purely politically, and they will be more likely to support proposals that curb the court’s powers. Indeed, a method of estimating judicial ideology based on justices’ voting—known as Martin-Quinn scores—suggests that the justices have separated into two ideological blocs defined by political party, implying not just a strongly consolidated conservative majority but also less ideological “crossover” voting. If the majority of Americans continue to strongly disagree with the court’s decisions, then the public may well turn against it, which may not only lead to greater political conflict but also undermine the rule of law.
Reforming the court to prevent extreme ideological movements may be difficult, but not impossible. For example, 18-year term limits for justices would regularize appointments—eliminating gamesmanship around vacancies and reducing incentives for justices to strategically time retirements. This would help prevent extreme partisan imbalance and thus keep the court closer to the ideological mainstream. Term limits enjoy wide bipartisan support and would put the US in line with other democratic peer nations, all of which have term or age limits for their high courts. Additional promising proposals by scholars to help reduce ideological imbalance include reconfiguring how the US selects justices and expanding the size of the court. Others—such as stripping the court’s jurisdiction—would address the argument that the court wields too much power.
As gridlock and polarization continue to undercut the efficacy of elected branches of government, the Supreme Court’s salience in matters of public importance will only rise. And the court’s conservative supermajority (6-to-3)—one closely aligned with Republican Party policy interests—has many years left. The discussion of court reform will not go away soon.

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Volume 377 | Issue 6607
12 August 2022

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Published in print: 12 August 2022


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Maya Sen is a professor of public policy at the John F. Kennedy School of Government, Harvard University, Cambridge, MA, USA.


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