A SUPREME COURT UNLIKE ANY OTHER

Analysis of a U.S. Supreme Court far removed from other instruments and tenets of democratic governance.

Political scientist McMahon opens with the most consequential single Supreme Court decision in our time: Dobbs, which overturned Roe v. Wade, undoing “a constitutional right that had been in the law books for nearly fifty years.” The decision scarcely elicited comment from the ruling majority and barely any dissent. The decision, notes the author, was another sign of a growing “democracy gap” between the Court and other democratic institutions that lend it legitimacy. The will of the people was once an intangible institution that held some weight in juridical decision-making; now the Court comprises a majority of “numerical minority justices,” appointed by presidents and confirmed by legislators who represent a minority of the American population. Moreover, writes McMahon, the Court, the product of heavy vetting by the archconservative Federalist Society, is representative of “a small sliver—more like a tiny speck—of [an] America that is closed off to the vast majority.” Given all this, it is small wonder that the Court’s decisions are so increasingly narrow in whom they reward and so onerous to so many ordinary people. Arguing from the general premise that the Court has little or no democratic legitimacy, McMahon suggests amendments to the Constitution that would reduce lifetime appointments to term appointments, and he floats the idea that court packing might have its uses, such as affording “presidents additional opportunities to choose from outside the judicial monastery.” Both measures, McMahon urges, would help depoliticize a Court that promises to be in the sway of the hard right for a generation to come.

A cleareyed, depressingly convincing view of a Supreme Court that has abandoned the Republic for other masters.