In this era of intense clashes over American democracy, the Supreme Court remains the least democratic institution in American government. Its members are chosen without regard to elections. Its justices are the only federal officials with lifetime tenure, so they are replaced when they retire or die. This structure invites glaringly arbitrary outcomes. Former President Donald Trump put three people on the court in four years; former President Barack Obama put two on the court in eight years.
For their part, the justices go to great lengths to tout American democracy for the nation — while avoiding its trappings in their own work.
For their part, the justices go to great lengths to tout American democracy for the nation — while avoiding its trappings in their own work. They do not organize themselves by party. They do not negotiate with each other over rulings. They do not endorse political ideologies. They say they follow the Constitution’s edict, that only by avoiding politics can the judiciary be an effective referee for democracy.
But how is all that working out?
In terms of public legitimacy, Americans consistently say they trust the Supreme Court more than the political branches of government.
On substance, the court just navigated one of the most politically divisive and legally fraught presidencies in the modern era. Trump was not the first president to complicate the court’s docket, nor the first to attack its rulings, or raise the specter of ignoring them. On issues ranging from immigration powers to secret tax returns, however, the court’s approach largely worked. Its distance from the heated electoral process proved to be a strength. Its claims to avoid partisanship proved true in the most partisan test possible: whether to even take cases questioning the outcome of the presidential race, as demanded by the president who gave three of the justices their lifetime jobs. The court widely rejected hearing several such suits, because they had no legal merit.
Other tests loom in the years ahead. The court is primed to wade back into abortion, voting rights and demands for wider equality in an evolving society. Stopping future attempts to undercut elections may require more than the hands off approach that worked in 2020, when the ballots simply needed to be counted, and sometimes recounted.
The pace of societal change is also far faster now than when the court was created. It must protect the system of democracy which tackles that change, so that citizens may govern themselves against a threat that has not changed much since the Founding era. The justices swear an oath to defend the Constitution against enemies “foreign and domestic,” because some of democracy’s greatest opponents are fellow citizens who would overthrow its results when they lose.
Ari Melber
Ari Melber, an Emmy Award-winning journalist, writer and attorney, is the host of “The Beat with Ari Melber” airing nightly at 6 p.m. ET on MSNBC. He also serves as MSNBC’s chief legal correspondent and an NBC News legal analyst. Before joining MSNBC, Melber practiced First Amendment law and served as a legislative aide in the U.S. Senate. He received a J.D. from Cornell Law School and is a member of the New York Bar.