Jonathan V. Last of the Bulwark has laid out a nightmare scenario regarding the Supreme Court: If President Donald J. Trump appoints a conservative justice, that justice gets confirmed, and then in a few months that justice is asked to rule on the election of Donald J. Trump to remain the president: huge nightmare. On Saturday, Trump is expected to nominate conservative 7th Circuit Court of Appeals judge Amy Coney Barrett to fill the late Ruth Bader Ginsburg’s seat on the high bench. The rest of the nightmare coming true is not implausible.
Last joined me on The Gist on Thursday (before Barrett was reported as Trump’s pick) to discuss the all-too-possible bleak future he lays out in his piece and what may or may not be done to prevent it. A portion of our interview is transcribed below; it has been edited and condensed for length and clarity.
Mike Pesca: When you wrote this piece about the legitimacy of the Supreme Court just a couple of days ago, it was premised on ways that mostly Republicans—either in the Federalist Society or in the Senate—can thwart what now seems clear to be an eventuality: a Republican Senate taking up a potential justice nominated by Donald J. Trump. Is it too late to avoid this nightmare scenario?
Jonathan V. Last: It’s never too late until it happens. So I wrote that piece just a couple hours after the word broke that Ruth Bader Ginsburg had passed on. And it was not clear that [Senate Majority Leader Mitch] McConnell would have the votes then. And it was not if you remember for the first hour or so, it wasn’t even really clear that Republicans would do this. It wasn’t clear that they would push ahead.
Once it was signaled that they would push ahead, it wasn’t clear that maybe they wouldn’t just announce a nominee, but then [just] say this is who the nominee is, and we’ll let the voters decide. And by Tuesday morning this week I believe McConnell claimed to have had the votes for it. We heard that Martha McSally and Cory Gardner were going to be two fists in on this; Mitt Romney was going to be in. [Lisa] Murkowski and [Susan] Collins were going to be against, to try to protect [Collins’] Maine seat.
If you wanted to try hard to be optimistic about it, the only thing you could say is, “Well, this would be better than doing it in a lame duck session after they lose the Senate and the White House.” That would have been worse. But that’s as close as you get to optimism. It’s really bad. It’s bad for everybody. It’s going to be bad for whoever the nominee is. It’s going to be bad for the institution of the Supreme Court. It’s going to be bad for everyone in America who wants a system of government that is capable of functioning in a reasonably competent and coherent way over the long term.
So I’ll relay to my listeners the key sentence in your piece: “If Trump and Republicans replace Ginsburg, it will destroy the remaining public legitimacy of the Supreme Court.” Full stop. I wonder if this is true in an election case, in the case of Donald J. Trump v. Joe Biden, or Donald J. Trump v. the United States, or Donald J. Trump v. Florida. But will the court be destroyed if the court isn’t asked to rule on the election of Trump?
I think so. Yeah. I mean, there is “more destroyed” and “less destroyed,” right? It’s a sliding scale. This morning the piece is out in the Atlantic where Barton Gellman has spoken to some legal advisers connected to the Trump campaign, one of which tells him the following. This is a quote: “The state legislatures will say, ‘All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate. So here’s our slate of electors that we think properly reflect the results of our state.’ ”
What he’s talking about is sending a different slate of electors to the Electoral College in battleground states where Republicans control the state legislature. If we wind up in a Bush v. Gore, but instead a Trump v. Biden–type situation, [that] is the most likely scenario for the Supreme Court having to rule on it.
If that’s where we are, then we’re already a failed state. I mean, if you get to the point where the president of the United States is telling state legislatures controlled by his party to send competing sets of electors to the Electoral College, and you have two groups of people showing up demanding that they’re the real people representing Wisconsin, or the real people representing Florida, this is not what happens in stable democracies. It simply isn’t.
If it doesn’t come to that—if Joe Biden appears to win by so much on Election Day, maybe this won’t even be a play available to them. If they think they have the votes in the legislatures of Michigan and Pennsylvania, but turn out not to, maybe this won’t happen. If it’s close enough for the Trump administration or a Trump campaign to pursue suits, but the lower courts smack them down regularly and don’t agree with them, maybe we avoid that, too, right? Maybe we avoid the court having to rule on this. In that case, what does that say about the legitimacy of the court or if we are living in a failed state?
Yeah, well, in that case, we’re not at failed-state levels. We’re merely at a level where the Supreme Court is going to come to be regarded just like every other branch of government. Which compared with the failed state thing sounds pretty attractive. You’d say, “Wow, it could be worse.” But it’s not attractive. It’s not attractive at all.
We’ve done this weird thing over the years where we have really altered the balance of power constitutionally. We’ve expanded the power of the executive branch, we’ve expanded the power of the judicial branch, and [we’ve] shrunk the power of the legislative branch. Which is probably pretty bad for us long term. But even as that’s happened, the judicial branch has still been regarded pretty widely as being legitimate. People look at it and they say, “OK, I may not like this ruling. I may think that I would like this ruling to be changed at some point, but at least I’m going to respect that this ruling is the law of the land.” And it has been arrived at by a legitimate manner.
And what Mitch McConnell and the Senate Republicans have done here is really just break that. I don’t think there’s any other way to say that. And to be very clear if they had voted on Merrick Garland and then decided to vote on this nominee now, I think that would basically be fine. If they had taken the tack they took on Garland and not held a vote and then not held a vote now, that would have been fine. You can make constitutional arguments for one of those eventualities over the other as being preferable, but so long as there some basic consistency, you could say, “OK, this might be suboptimal, but it’s not the end of the world.” Doing this with a swing seat [though], the only remedy winds up being a wholesale reform of the court. And reforming the court just because we live in the worst of all possible timelines is likely to take the form of attempted reforms, which will continue to escalate the problem.
And this is why the idea of expanding the court by another, what, three justices or six justices—however many more justices you want to put on—I think winds up continuing down the very dangerous road that we’re on. And the much better way would be to find a mechanism which would allow us to de-emphasize the importance of the court, to make it less of a flashpoint and make it so that we don’t have to have total war every time there’s a Supreme Court nomination.
And the obvious answer for that, I think, is to regularize the terms—so the Supreme Court terms are 18 years. You have a regular schedule; this way even a two-term president doesn’t get to have a majority of appointees on the court at any one time. But I’ve given up on hoping that anything good can ever happen in the world we live in.
Well that’s good; that at least protects yourself.
When we talk about the legitimacy of the court, Gallup last did polling in 2019. So what they ask is “how much trust and confidence do you have in”—and they go through the different branches. So the executive branch in 2019 polled at cumulative 55 percent expressing not much or no confidence at all in the executive branch. The legislative branch, 61 percent no confidence at all or not much confidence in the legislative branch, deservedly I would say. The judicial branch was at only 31 percent no confidence. They were at 69 percent having a great deal of confidence or a fair amount of confidence.
So if it becomes seen as illegitimate, what does that really mean? Does that mean that the judicial branch numbers become the legislative branch numbers? Does that mean something other than the perception of the average American? Or does that mean, even if people don’t have confidence, as in the president and the legislature, both those branches still have the means to execute their policy.
But the courts and the Supreme Court are fairly dependent, not just on the perception of legitimacy, but on the perception of the other two branches of their legitimacy. Otherwise we get into the situation where it’s, “Mr. Taney has made his ruling; now let us see him enforce it.”
Yeah. I think that’s right. And we’ve already seen this with the legislative branch. Look at the way the Trump administration has just simply refused to comply with directives from the legislature, right? Refusing to send witnesses and then saying, “well how are you going to do that? You’re going to have the sergeant of arms go and rouse people up off the street and bring them in to testify?”
Why wouldn’t you wind up at a point where the Supreme Court could make a ruling, and the chief executive who happens to also be the commander in chief could then say, “No, we’re not going to do that.” Would you put that past Donald Trump? I sure wouldn’t. And legitimacy is one of these things that sounds like just this gauzy, gooey abstraction, and you don’t really understand how important it is until it’s gone, because it’s the foundation of everything. It is the consent of the governed.
And once it goes away, you can’t put it back together again. I talk about us as a failed state, and we’re not yet. It’s important to say that this is—I’m catastrophizing a little bit only because I’m looking down the road to say that you can see how this happens. And even if you don’t think it’s likely to happen, you look at it and you say, “Look, we are unlikely to wind up like Hungary.” [But] if there is a 5 percent chance that America could wind up like Hungary, that’s a big fucking deal.
This is a state of affairs that we have not had in America in 140 years. To go from a 0 percent chance to a 2 percent or a 5 percent chance should scare the living crap out of everybody.