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Consistency and the Court

Recent goings-on at the Supreme Court threaten to put into question the legitimacy of our political institutions.
Justices of the U.S. Supreme Court sit for their official group photo in Washington, D.C, on June 1st, 2017.

Justices of the U.S. Supreme Court sit for their official group photo in Washington, D.C, on June 1st, 2017.

Talk of consistency and hypocrisy are much in the news today, especially in light of some recent political developments this week. To wit:

  • Senate Majority Leader Mitch McConnell said that "it is imperative" that the president's nominee to replace Supreme Court Justice Anthony Kennedy "be treated fairly," and that of course that nomination would go forward in an election year despite his depriving the Senate of a vote on Barack Obama's nominee, Merrick Garland, in 2016 on those exact grounds. In other words, speedy confirmation process for Republican nominees, but no consideration at all for Democratic ones.
  • The Supreme Court ruled this week that the White House travel ban didn't discriminate against Muslims because it was "facially neutral" and we shouldn't pay attention to President Donald Trump's tweets on these matters. This comes shortly after its ruling in favor of the Masterpiece Cakeshop in Colorado found comments made by a state agency employee suggested discrimination against Christians. In other words, ignore evidence when considering discrimination against non-Christians, but focus on it when it hurts Christians.

To quite a few political observers, and especially liberal political activists, it was all quite infuriating. It is, indeed, frustrating to watch a party recite talking points stating that one rule they just made up out of whole cloth has been the guiding principle for the nation for decades, especially when that same party goes ahead and abrogates that very rule the following year.

There are, of course, reasons to dismiss such complaints. Yesterday, Bloomberg's Jonathan Bernstein noted that, not only do people in power not care when their hypocrisy is pointed out, voters don't care either. And, in fact, Bernstein added, voters are right not to care. A politician's role is simply to engage the public in debate around policy and government action; it's immaterial whether a politician took a different position the last time around.

I take his point, but I'd like to disagree with Bernstein here, at least in part. The rhetoric used in supporting or opposing a government action is relevant to that part of the government's legitimacy. Mitch McConnell could simply take an action (schedule or delay a vote, allow or prevent a bill, etc.) without providing any rationale at all. The Supreme Court could issue a ruling without offering any explanation behind it. We expect more from our institutions because our trust in them relies on a belief that they're operating fairly. That is, we know that we will not always get the actions we want out of Congress or the court or the White House, but it's important that we accept the process as legitimate, that we come away convinced that we had a chance, and that we'll have a shot at a favorable outcome the next time around.

There is reason to believe the legitimacy of our political institutions is more fragile now than its been in many years. Public trust in government is generally very low. Trump got elected after a year of claiming that the electoral system was rigged. That he won while losing the popular vote, and that allegations of foreign interference in the election continue to dog him, undermine his legitimacy as president. The fact that the majority party in the Senate represents a minority of the population, and that Democrats could win the House vote by more than five percentage points this year and still not control the chamber, all undermine the legitimacy of that institution. The fact that four of the nine Supreme Court justices will have been placed there by presidents who lost the popular vote potentially undermines that institution's legitimacy. The fact that the court inserted itself into the 2000 presidential election to pick one of those presidents made it even worse.

Legitimacy is tied up with the rhetoric public officials use. If they lack credibility, if it becomes nakedly transparent to political observers that the words those officials use bear no relationship to the truth, that further harms the legitimacy of the government. It is difficult to know just how fragile this legitimacy is right now; people still largely obey laws and follow court rulings and put their money in banks. But we are making things more fragile.

After the court's ruling in Bush v. Gore, Al Gore famously said, "While I strongly disagree with the court's decision, I accept it." At the time, there seemed to be little doubt that the losing candidate in that race would issue such a statement. I'm less confident there would be such a statement should this kind of case occur again.