November 2016 as a “Constitutional Moment”

In response to my prior post on the Supreme Court vacancy and the majoritarian difficulty, Mark Savignac offers a series of observations and extensions that strike me as entirely right:

(1) A Supreme Court nominee would indeed have more democratic legitimacy after an election in which the open seat was a highly salient part of the race — though the model doesn’t tell us how much more; after all, Supreme Court appointments are always a salient part of the appointing President’s legacy and the legacies of key Senators. (2) While you ask whether a Justice whose nomination was highly salient during an election period would be or feel less constrained by countermajoritarian concerns, in fact the constraint should be stronger for such a Justice if the winning candidate had presented the nominee as a moderate, restrained judge; judicial activism isn’t democratically legitimate unless you run as a judicial activist. (3) Conversely, if the winning candidate did run on a highly salient commitment to, for example, appoint a vigorous conservative originalist or someone who would commit to overruling case Y, then the appointee would indeed be able to follow that path with a higher level of democratic legitimacy — at least until the people decided they weren’t so happy with it after all.

To Mark’s final point, I would add the following: If the winning candidate promises to appoint a nominee who will follow precedent X, then the election might serve to legitimize the result in X (just as if the winning candidate promises to appoint someone who will overrule the precedent in Y, the election might serve to delegitimize the result in Y). More concretely, in light of Hillary Clinton’s high-profile embrace of the Supreme Court’s marriage equality ruling and Trump’s suggestion that he would “strongly consider” nominating someone who would overturn Obergefell, a Clinton victory might be seen as a popular ratification of a constitutional right to same-sex marriage. The more salient the Supreme Court is as an issue in November, the more ringing the ratification would be. (It might be harder to interpret a Clinton victory over Trump as a repudiation of Citizens United, given that Trump is also critical of that decision.)

If this all sounds similar to Bruce Ackerman’s theory of “constitutional moments,” well, it is. Indeed, Ackerman said something very much along these lines after the Senate rejected Robert Bork’s nomination in 1987:

The final judgment on the Bork affair will be rendered in 1988, when our representatives in Washington return to the electorate to renew and redefine their mandate. Thus, partisans of Robert Bork’s constitutional vision may try to make his rejection a central issue of the forthcoming election campaign, appealing to the voters to “send a message to Washington” by defeating those Senators who were deaf to the People’s demand for a repudiation of key precedents of the Burger and Warren Courts. Similarly, the Republicans may nominate a presidential candidate who makes the Bork nomination one of the central points of his campaign and promises the American people that he will continue on the transformative path marked out by President Reagan.
If the Republicans were to take this course, they might make the next election into a constitutional referendum . . . . Indeed, in this scenario, the next President might even seek to seal his mandate from the People by renominating Robert Bork to the next vacancy on the Court. [Alternatively,] the supporters of Judge Bork’s constitutional vision may reveal . . . that they cannot presently win a decisive popular mandate for a radical repudiation of established constitutional doctrine. . . . In this alternate scenario, the personal tragedy of Robert Bork would go down in history as a marker of a failed constitutional moment, in which a political movement, after raising a new agenda for constitutional reform, fails to generate the kind of deep and broad support necessary to legitimate a change in the constitutional principles institutionally defended in the name of We the People.

As it happened, George H.W. Bush did not try to transform the 1988 election into a referendum on Bork. That turned out to be a wise move. And I am surprised that Republican leaders would want to make the 2016 presidential election a referendum on marriage equality, given Gallup poll numbers suggesting that 60% of Americans think that “marriages between same-sex couples should . . . be recognized by the law as valid.” (Note, though, that an Associated Press poll shortly after Obergefell suggested that a plurality of Americans actually opposed the Supreme Court’s decision.)

One final note: In his dissent in Obergefell, Chief Justice Roberts memorably wrote:

Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens — through the democratic process — to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

Maybe the Chief Justice jumped the gun. In a Clinton-Trump race, the future of same-sex marriage might very well be decided through a “democratic process,” with Obergefell not explicitly on the ballot but not very far off it. Perhaps popular constitutionalists who believe in the power of elections to ratify constitutional change should embrace the Senate’s obstructionism as setting up an important step in the evolutionary process.