As Amy Coney Barrett ascends to the Supreme Court, it seems that Democratic politicians are singing from the same hymn book about the meaning of this dire occasion. Not only is there discussion of righting the imbalance in the Court, now that conservatives hold a 6-3 majority, there is open talk of how the Court’s very legitimacy is at stake. This is as it should be, given that since 1969 Republican presidents have appointed 15 of the last 19 justices, despite that party having won the presidential popular vote a single time over the last 28 years and seven elections, and in light of the fast-tracking of nominations like those of Brett Kavanaugh and Amy Coney Barrett that robbed Americans of their ability to assess whether those justices are qualified or fit for their positions, followed by their approval by a GOP Senate majority that collectively received millions votes less than the Democratic Senate minority.
Foregrounding the concept of “legitimacy” in the discussion is essential because it’s crucial not only to Supreme Court appointments and rulings, but to the coherence of the American political system more generally. For instance, it’s easy to see how talking about the legitimacy of Supreme Court appointments by Republican presidents who lost the popular vote logically leads into questions around the legitimacy of the electoral college, which permitted minority GOP presidents to make such appointments. Beyond this, it puts up for public discussion the extremely important notion of legitimacy in a democracy.
But what does “legitimacy” specifically refer to? I’ve repeatedly written of the need to de-legitimize the GOP because of its embrace of racism and political violence during the Trump years, but haven’t spent a lot of time explaining what I mean by this. Recent discussions around the Barrett nomination have helped clarify my thinking, including a surprise assist yesterday from none other than Senate Majority Leader Mitch McConnell.
As he often does, McConnell has been engaging directly but misleadingly with the arguments his Democratic opponents have been making, most recently in response to the rising Democratic fury around the Barrett appointment. According to Bloomberg reporter Steven Dennis, McConnell remarked that Democrats “repeating that confirming a justice was ‘illegitimate’ doesn’t make it so,” and that ‘legitimacy’ is not the result of their feelings.” McConnell is essentially making the case, most strikingly embodied in his handling of the foiled Merrick Garland and successful Kavanaugh and Barrett nominations, that as long as the Constitution allows something, it is legitimate.
But Democrats who talk about legitimacy are referring to something broader than just whether the constitution allows a certain action; they are also talking about whether an act or situation is characterized by democratic fairness. In this sense, talking about legitimacy is another way of talking about what should be considered fair and acceptable in a democracy. Mitch McConnell would have us believe that there is no distinction between what is constitutional and what is legitimate, while Democrats are making the case that there are indeed important distinctions between what is allowed by the constitution and what should be considered as legitimate in American democracy.
As MSNBC’s Chris Hayes tweeted yesterday, to illustrate the distinction between what the constitution allows and what would be generally considered permissible (i.e., legitimate), it would be entirely constitutional for a president to order his chief of staff to murder a political opponent, then use his pardon power to pardon that chief of staff — yet such a move would be very widely recognized as grotesquely illegitimate, both in terms of the murder and in terms of a clear abuse of the pardon power. It’s an extreme example, but effectively shows why McConnell’s effort to conflate constitutionality and legitimacy is a way to forestall discussion of the latter concept.
McConnell wants to avoid such a discussion around the Supreme Court because he fears, rightly, that the GOP will very likely find itself on the losing side once we start talking not of constitutional legitimacy but a broader democratic legitimacy of recent court appointments. If legitimacy is conferred not simply by blind obeisance to the letter of the constitution, but also depends on the degree to which a certain action reflects the will of the majority, then it matters very much that the three most recent appointees were named to the Supreme Court by a president who did not receive a majority of votes.
Ironically, then, we find that legitimacy actually IS dependent on people’s “feelings,” to use McConnell’s own language — or, to put it in less inflammatory and insulting terms, is dependent on people’s feelings of justice, right and wrong, democratic accountability, and other reasonings and intuitions that citizens agree should be taken into account when political decisions are made. McConnell’s attempts to distort our traditional, if not always fully articulated, ideas of democratic legitimacy have backfired, leading to a necessary discussion about what is considered legitimate in American politics.
This is a conversation that is likely to lead to a discrediting of McConnell’s self-serving constitutional literalism. Once you agree that things outside the constitution matter, then you are in the realm of majority politics and debate, an area of contention where minds can be changed and consensus built. McConnell, as a leader in a political party that is steadily losing supporters, should well dread such a process, just as Democrats are right to embrace it.
What makes me disinclined to board the gloom and doom bandwagon that some are on, in which the Supreme Court is sure to strike down any progressive legislation passed by a future Democratic president and Congress, is that the debate currently underway about legitimacy, particularly regarding the Court, is one that is not easily put back in the bottle. In fact, it’s a debate that the Democrats should have advanced long before now. And a discussion of democratic legitimacy hardly ends with the Supreme Court; it’s a framework for talking about, and undoing, various other anti-democratic measures the GOP has implemented to maintain power despite growing minority status, such as voter suppression and gerrymandering.
But I’m not just buoyed by the prospect that this is an argument Democrats can make to the public and win. Talking about legitimacy means talking about a bedrock principle of democracy, which is healthy for our political system in a general sense, in that it is always good to understand and re-affirm first principles. Beyond this, though, when Democratic politicians talk about such a basic idea, one that every voter can understand and offer an opinion on, it has the effect of making it difficult for those politicians to then turn off such rhetoric and settle for compromise with the status quo rather than pursuing a difficult but necessary fight to rally public opinion to their side, whether it’s expanding the court system or passing new voting rights legislation. Talking about legitimacy creates a higher likelihood of a feedback effect, in which energized citizens press their elected representatives to make good on all their reasonable, high-minded, and motivating talk. It is not something that can easily be switched off once the election is past, and the urgency of getting votes and donations has abated. In a very real way, Democrats are locking themselves into a path to action. This is a very hopeful development.