With Kavanaugh set to be confirmed, despite the certainty that he, like the president who nominated him, will bring death and destruction upon us, wild stories began to emerge. This comes on top of the efforts of pundits like Linda Greenhouse deriding the legitimacy of the Supreme Court as a bunch of partisan hacks in reaction to rulings that fail to meet her progressive desires, and in anticipation of the impact of Justice Neil Gorsuch and soon-to-be justice Brett Kavanaugh.
The most curious attack, which has swiftly entered myth stage, is that these justices are illegitimate because they reflect “minority rule.” The primary contention is that Trump, having failed to “win” the popular vote, a fundamental contortion of our electoral system, is an illegitimate president, and that Kavanaugh, expected to be confirmed by senators representing a minority based upon their state’s population or vote totals, will thus be doubly illegitimate.
Why does it matter? Because the theory is that they reflect a radical conservative view that strays from the “mainstream of American political life.” This myth has already found its way into a New York Times op-ed.
Donald Trump won just under 46 percent of the popular vote and 2.8 million fewer votes than Hillary Clinton. And Judge Gorsuch was confirmed by a vote of 54-45. According to Kevin McMahon of Trinity College, who wrote all this up this year in his paper “Will the Supreme Court Still ‘Seldom Stray Very Far’?: Regime Politics in a Polarized America,” the 54 senators who voted to elevate Judge Gorsuch had received around 54 million votes, and the 45 senators who opposed him got more than 73 million. That’s 58 percent to 42 percent.
And if the Senate confirms Brett Kavanaugh soon, the vote is likely to fall along similar lines, meaning that we will soon have two Supreme Court justices who deserve to be called “minority-majority”: justices who are part of a five-vote majority on the bench but who were nominated and confirmed by a president and a Senate who represent the will of a minority of the American people.
The simplest response is based on Occam’s Razor, that the simplest explanation that accounts for all known facts is probably correct: both the president, and the justices he nominated, hold their position in complete accord with the mechanisms our Constitution has established for the functioning of our government. You may not like it, but this is what the Constitution provides. In other words, this is a completely irrelevant metric, raised only to provide cover to those outraged but lacking any argument approaching logic.
And, to quash the next response, that the process proves the Constitution is horrible, archaic and established by the Patriarchy to maintain their minority control by racism and sexism, from the electoral college to a simple majority Senate confirmation process, this is America. It’s founded upon our Constitution, even if you really hate it when you don’t get your way. Maybe Venezuela would be more to your liking?
But the premises of this “minority rule” argument require numerous assumptions that not only conflict with our process, but can’t survive rational scrutiny. If our presidential elections were based on popular vote, then votes that happened would be driven by a different dynamic and it would have been a different vote. Participation in voting has always been relatively poor, reflecting the fact that many people don’t care enough to put themselves out by going to the polls.
No vote can thus be claimed to reflect the majority of Americans, because not enough people vote. This may well be considered a good thing, given that many lack the level of political knowledge to register a meaningful vote, but then there is no “knowledge” requirement to exercise the franchise.
But if we elected a president by popular vote, then people in states that were recognized as clearly red or blue might vote anyway, whereas now they feel no compulsion to add one more vote to an already certain outcome. How would this pan out? We don’t know, because it’s not how we do it. Argue about this all you want (though not here), but it won’t change the fact that no one knows the outcome of a popular vote, and it’s a lie to extrapolate our electoral college system into a popular vote system when it suits your argument.
As for the Senate being unfair because of state populations, state votes, this is a facile delusion. Nobody complains when a small state Senator votes in favor of something they support. That we’ve forgotten that we are a nation of states, even states we consider unworthy of our sophisticated concerns, doesn’t change federalism or how our nation was structured. No matter how much you prefer California to West Virginia, our bicameral structure exists because our nation wouldn’t without it.
But then, the bottom line of the contention is that these justices are outside the mainstream of American political thought,* even if they were shoehorned into their posts by a conniving president and Senate who gamed the system to their advantage. What about that?
But now, in an age of 5-4 partisan decisions, we’re on the verge of having a five-member majority who figure to radically rewrite our nation’s laws. And four of them will have been narrowly approved by senators representing minority will. (Emphasis added.)
Putting aside the question of whether the Supreme Court does, or should, “rewrite” laws at all, there is a bizarre belief on the part of progressives that they are the majority, or at least that they are right and anyone who questions this is either stupid or deplorable, and therefore deserves to be ignored. Whether this is the product of social media or academic echo chambers, or merely their belief system that requires no proof, is unclear. But its truth is by no means clear.
On the one hand, it ignores the fact that Republicans hold control over more states than Democrats, governorships and legislatures. On the other hand, it ignores the choice presented to Americans, a vulgar, amoral ignoramus or the promise of a socially-engineered Utopia eradicating American tradition and the American dream in favor of hegemony of the marginalized. The assumption that those who voted for Clinton supported progressivism ignores the possibility that they merely voted against Trump,** not in favor of Hillary or progressive reinvention of their nation.
When faced with a choice of “radical” positions, America chose to remain America. And if this is false, there will be more elections in the future where the mainstream of American political thought can reassert itself by way of Congress and the president.
*Bear in mind when speaking to the mainstream of American political thought that it was uncontroversial when Justice Sam Alito was confirmed, 58-42. Nobody even looked at his high school yearbook.
**One might wonder why Trump didn’t lose 80-20, given his lack of experience, knowledge or plan, plus the outrageously scandalous behaviors that manifested daily. Perhaps the only reason Trump was even in the game was that Americans so overwhelmingly rejected progressivist identity politics that it preferred an idiocracy under Trump as the lesser of two evils.