Brandeis Magazine

Winter 2024/2025

Perspective

The Supreme Court’s Legitimacy Problem

What happens to democracy when a majority on the high bench is indifferent to the voice of the voters?

By Kevin J. McMahon, GSAS PhD’97

A large group protests outside of the U.S. Supreme Court.
Abortion rights proponents rally outside the U.S. Supreme Court on June 25, 2022, the day after the court’s decision to overturn Roe v. Wade was announced.
Photo Credit: Roberto Schmidt / Getty Images

Louis D. Brandeis was the first nominee the U.S. Senate considered for the Supreme Court after the 17th Amendment was ratified in 1913. The evidence suggests the amendment, which transformed the Senate from a body of men chosen by state legislatures to a body of individuals popularly elected by the citizens of each state, was central to Brandeis’ confirmation.

From the start, Brandeis’ 1916 nomination was deeply controversial. Given the antisemitism of the day, many scoffed at the idea the Senate would confirm President Woodrow Wilson’s selection, known as the “people’s lawyer.” Former president and future chief justice William Howard Taft, the incumbent Wilson defeated in 1912, focused on the future justice’s work as a progressive crusader against the economic elite, calling him “a muckraker, […] a socialist, [and] a hypocrite.” For Taft, Wilson’s choice of Brandeis was “one of the deepest wounds that I have had as an American and as a lover of the Constitution.”

No nominee has had to wait as long as Brandeis did before the Senate voted to confirm him — that record of 125 days still stands. But Brandeis had the 17th Amendment working in his favor. In the wake of its adoption, senators now had to consider their state’s voters.

This mattered to Sen. Henry Cabot Lodge, a conservative Republican from Massachusetts up for reelection. According to historian David Dalin, GSAS MA’76, PhD’77, P’11, “Lodge’s position of influence as the senior senator from the nominee’s state would probably have brought about Brandeis’ defeat had Lodge invoked the rule of senatorial courtesy,” an unwritten convention among senators whereby they vote against a presidential nominee opposed by senators from the nominee’s home state.

Dalin suggests that Lodge, who detested Brandeis’ and Wilson’s politics, understood he would soon face a Massachusetts electorate that included “newly enfranchised voters, including many Catholics and Jews.” And indeed, according to the historian, Lodge’s opponent in the race — the charismatic former Boston mayor John “Honey Fitz” Fitzgerald — applauded “Wilson’s nomination of Brandeis, as did most of the city’s Irish Democrats.”

Though Lodge voted against Brandeis’ confirmation, he did not seek to derail it. The Senate confirmed Brandeis by a vote of 47-22, and, six months later, Lodge was awarded with reelection.

Compare that series of events to the confirmation politics of today. It is highly unlikely a nominee like Brandeis would be selected at all. First, there is the problem of Brandeis’ age. By the time he took his oath of office, he was just five months shy of his 60th birthday. Today, presidents select younger nominees who they hope will serve for three decades or more, far outstripping the average tenures of the past and preventing the court from changing organically.

Second, the current political environment demands the selection of a nominee from an extraordinarily small pool of potential candidates — what I call the “supreme elite.” The nominees chosen by both Democratic and Republican presidents have all led remarkably similar lives en route to the court, creating a cloistered, cookie-cutter bench. None of these nominees would come close to fitting the description of a people’s lawyer.

Third, unlike past Supreme Courts — even very conservative ones — the current collection of nine justices includes a majority of what I call ‘numerical minority’ justices. These are justices who secured their seat on the high court with the support of a majority of senators who represented a minority of voters.

Consider, for example, the confirmation vote for Justice Brett Kavanaugh. Although Kavanaugh won confirmation by a vote of 50-48, the 50 supporting senators won 24.5 million fewer votes in their most recent election than the 48 opposing senators — a difference of 18.5%. Because of the polarized nature of American politics, these supporting senators didn’t fear defeat on Election Day after voting to confirm Kavanaugh.

The five numerical minority justices — Clarence Thomas, Samuel Alito, Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh — are the same five who voted to overturn Roe v. Wade in 2022. They are the same five who joined Chief Justice John Roberts’ opinion in Trump v. United States, which greatly enhanced presidential power through an expansive definition of presidential immunity. Strikingly, they are also the only five in U.S. history who fit the definition of a numerical minority justice.

“The five ‘numerical minority’ justices on the current bench were confirmed by a majority of senators who represented a minority of voters.”

So, what does all this mean? The divide — what I call the “democracy gap” — between the court and the electoral processes that endow it with democratic legitimacy is likely greater today than at any other time in American history. And I believe a Supreme Court that continues to act aggressively against the majoritarian interests of the United States threatens the very fabric of American democracy.


Kevin J. McMahon is the John R. Reitemeyer Professor of Political Science at Trinity College in Hartford, Connecticut. He is the author of “A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices and the People” (University of Chicago Press, 2024).