We Were Clerks at the Supreme Court. Its Legitimacy Is Now in Question.



We Were Clerks at the Supreme Court. Its Legitimacy Is Now in Question.

nytimes.com | October 25, 2020 10:00 AM

Brazen politics in Amy Coney Barrett’s confirmation process threatens the court’s standing with the public.

Mr. Crooks and Mr. Deger-Sen are lawyers.

Photo by: ...Samuel Corum/Getty Images

We are lawyers who clerked for Justice Anthony Kennedy, a lifelong conservative appointed to the Supreme Court by President Ronald Reagan. We urge the Senate not to confirm Judge Amy Coney Barrett or any nominee until after the presidential election. Rushing through a confirmation with an election underway threatens the very legitimacy of the court.

Those lucky enough to interview for clerkships at the Supreme Court anticipate, or perhaps dread, a spirited debate on difficult jurisprudential issues. But the first question Justice Kennedy asked us both — and, we’d learn, all prospective clerks — had nothing to do with legal doctrine: “So, how are we doing?” It was perplexing at first to realize he cared less about our knowledge of legal particulars than about gauging how the court was perceived beyond its marble walls.

What we’d come to appreciate after a year working alongside him was that, far from just a friendly icebreaker, Justice Kennedy’s question revealed his understanding of a profound but often overlooked truth: The court’s influence extends only as far as its perceived legitimacy. As Alexander Hamilton put it, the judiciary “has no influence over either sword or the purse.” If the court wants the people to obey its rulings, it must depend on “neither force nor will, but merely judgment.” In other words, Supreme Court pronouncements are a dead letter unless the public accepts them as the law.

For his nearly two decades at the court’s center, Justice Kennedy understood this. Though he rejected the label of “swing justice,” it certainly fit: His opinions controlled cases that traversed our country’s deepest divides — on race, abortion, gay rights and campaign finance. Yet the judgments the court rendered during his tenure, while almost always drawing ire from one political faction or another, were accepted as legitimate. Al Gore conceded the day Bush v. Gore was decided. There was no latter day George Wallace blocking couples from the courthouse after the Obergefell decision guaranteed the right to same-sex marriage. For other government officials and the public, these decisions were understood to be final — not because the court is infallible, but because its judgments resulted from a process perceived as legitimate.

That fragile but crucial public acceptance was hard won over decades of compromises within and between each branch of government. But if Senate Republicans hastily confirm Judge Barrett in the middle of an election, when a clear majority of Americans would prefer that Congress focus on the nation’s economic recovery, that earned legitimacy will be put in jeopardy.

With Judge Merrick Garland denied even a hearing by Republicans after his nomination by President Barack Obama, and now the rush by those same Republicans to confirm Judge Barrett, the court’s very composition will be seen as a product of the most brazen kind of politics. We fear its decisions will be seen that way too.

That’s why the Republicans’ strategy of forcing through this nomination is shortsighted and may ultimately be self-defeating. The current court is, despite occasional hand-wringing on the right over a decision or two, the most conservative this nation has had in nearly a century. Yet each time it has delivered significant conservative victories — such as Citizens United, which struck down key campaign finance limits, written by our former boss in 2010 — liberals accepted the outcome as the law of the land.

But it is wrong to think that such acquiescence is guaranteed. Just consider calls among Democrats to increase the size of the court if they win the election.

Now we face a situation that Democrats may understandably find near impossible to swallow: a Supreme Court vacancy being filled the week before a presidential election, by a minority-elected president facing an improbable re-election and a Senate that denied President Obama (who was popularly elected twice) the right to fill a seat in an almost identical situation.

We’re liberals. But we’re also institutionalists. We don’t urge postponing Judge Barrett’s confirmation because of her qualifications or originalist philosophy, and we don’t question the sincerity of her promise to approach each case impartially. Our concerns run deeper — that regardless of how or why Justice Barrett would vote on the momentous issues that would come before her, the court’s decisions won’t be accepted.

We worry that a large swath of the nation, told a Democrat can’t fill a vacancy in an election year but a Republican can, will dismiss the court as yet another partisan body. And we worry that if our children are asked, years from now, “How is the court doing?” their answer will turn on which politicians last got their hands on it, and not the reasoning behind the court’s judgments.

Jamie Crooks and Samir Deger-Sen are lawyers.

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