Why the U.S. Supreme Court could face its greatest legitimacy crisis in nearly a century

Within the next few months, we will likely see the fruition of Republicans’ half-century-long effort to create a staunchly conservative Supreme Court majority. What’s unclear is how the result will affect the legitimacy of a court that already has the lowest approval ratings in its history.

In 1968, Richard Nixon ran for president campaigning against the liberalism of the Warren court. In 1981, when Ronald Reagan was inaugurated, he pledged to appoint conservatives to the Supreme Court and the lower federal courts. In 2016, when Donald Trump was running for president, he repeatedly said he would appoint justices committed to overruling Roe v. Wade.

Even if the Senate confirms President Joe Biden’s new nominee, federal appellate Judge Ketanji Brown Jackson, the court will retain six conservatives, all appointed by Republican presidents. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are among the most conservative ever to serve on the court.

The composition of the court reflects both the accidental timing of vacancies and Republicans’ deliberate manipulation of the process. From 1961 through 2020, there were 32 years with Republican presidents and 28 years with Democratic presidents, but Republican presidents picked 15 justices while Democrats selected only eight. Put another way, Donald Trump, who served four years, chose three justices. The past three Democratic presidents — Jimmy Carter, Bill Clinton and Barack Obama — served a combined 20 years but chose only four justices total.

This is the first full term with Barrett on the court, and 2022 will therefore be the year we find out what it means to have a truly right-wing Supreme Court.

The justices are considering a number of high-profile cases relating to society’s most politically divisive issues.

Last month, the court heard arguments in two cases involving the Biden administration’s efforts to require that workers be vaccinated. One involved an emergency regulation mandating that employers with more than 100 workers require vaccination or weekly COVID tests of their employees. The other concerned a regulation requiring health care workers to be fully vaccinated against COVID unless they are eligible for a medical or religious exemption.

In the lower courts, judges appointed by Democrats almost always voted to uphold the rules in these cases, while judges appointed by Republicans usually voted to invalidate them. The Supreme Court blocked the broader regulation, with all six conservative justices ruling against it, but narrowly upheld the requirement for health care workers, with Kavanaugh and Chief Justice John Roberts joining the liberal minority.

In November, the court heard arguments in a challenge to a century-old New York law that prohibits carrying a concealed weapon in public without a permit. From the oral arguments, it seems clear that the conservative justices will strike down this law and greatly expand the right to bear weapons in public.

In December, the court heard arguments on whether Roe v. Wade should be overruled. The focus was a Mississippi law that prohibits abortions after the 15th week of pregnancy. Since Roe was decided in 1973, the Constitution has been held to prohibit states from outlawing abortions before viability, about the 24th week of pregnancy. Based on oral arguments, it appears there are six justices ready to uphold the Mississippi law and a majority likely prepared to completely overrule Roe.

All of these cases will be decided by the end of June. Conservatives expect major changes in constitutional law as a result.

If so, what will it mean to have a Supreme Court that is much further to the right than the American people? If the rulings go as I predict, I foresee the court facing deteriorating approval ratings and a crisis of legitimacy unlike any we’ve seen since the 1930s.

This story was originally published February 21, 2022 at 5:00 AM.