Photo-Illustration: Intelligencer; Photo: Tom Williams-Pool/Getty Images
the national interest

Why Ketanji Brown Jackson Will Be the Last Democratic Justice for a Long Time

The Court is getting more partisan and much harder to change.

Photo-Illustration: Intelligencer; Photo: Tom Williams-Pool/Getty Images

On the surface, Ketanji Brown Jackson’s confirmation to the Supreme Court appeared to portend a hopeful future for liberals. She was the bright, youthful (as these things go) face of a more enlightened judiciary.

But appearances can be deceiving. A more accurate picture of the Court’s future could actually be discerned from two other stories that flanked it. The first was Ginni Thomas’s ravings to Donald Trump’s chief of staff — more specifically, the nonplussed response thereto from the Republican Establishment, which is perfectly satisfied to allow a prominent conservative activist to draw on her connection to an esteemed conservative jurist to promote QAnon-inflected conspiracy theories in the highest corridors of power.

The second was Mitch McConnell’s refusal to commit to hold any hearings for a potential Supreme Court vacancy should his party win a Senate majority when prodded by Jonathan Swan. McConnell made it clear that Jackson is likely the last Supreme Court justice Democrats will nominate for years, maybe even a decade or more.

Jackson’s confirmation was a brief, joyful respite. The future is a semi-permanent Republican judicial majority in which, contrary to the visual impression, Thomas’s worldview is much closer to the mainstream and Jackson’s is a relic of a rapidly fading past.

There is a plausible argument that the Ginni Thomas story did not reveal wrongdoing by Clarence Thomas or even his wife. (Being crazy is not a crime.) But this assumes the justice does not share any important elements in his wife’s deranged worldview. And while that assumption is possible — every marriage is different — it is hardly a safe assumption.

The trouble is that we simply don’t know whether, or to what degree, Clarence Thomas believes Trump really won the election, that a well of evidence could prove his victory, and so on. The life tenure of a Supreme Court justice means that, once given a seat on the Court, he could easily evolve from a reliable partisan to an unhinged, paranoid nut without exposing his seat to any risk or even necessarily giving any outward indication to the country. Conservatives admire Clarence Thomas, appreciate the results of his votes, and refuse to take any posture other than assuming the best and daring his critics to prove that he agrees with his wife — which is, of course, unprovable.

The scandal, in other words, is that we have to rely on the unprovable good faith of the Court’s justices. There barely exists any method to wall them off from partisan politics. A couple months ago, Neil Gorsuch appeared at a Federalist Society conference alongside Republicans such as Mike Pence, Ron DeSantis, and Kayleigh McEnany. A few months before that, Amy Coney Barrett fêted McConnell in a speech putatively dedicated to refuting the charge that she and her colleagues are “partisan hacks” but which in reality served to bolster it.

American Oversight obtained emails from Ginni Thomas revealing that her husband is in regular contact with DeSantis. That story received far less attention than her emails about Trump’s stolen-election fantasies but seems far more ethically damning. If a Supreme Court justice can maintain regular, private communication with one of the leaders of a political party, exactly what is left of the Court’s nonpolitical role other than its carefully burnished appearance?

What these events all reveal is that the justices, and especially the Republican ones, recognize they operate insulated from any practical accountability. They can appear with their legislative allies in public and confer with them in private, knowing full well they will face no accountability or consequences.

What surely enhances their confidence is the understanding that even if a public backlash were to develop — and a backlash of any important magnitude is currently nowhere to be seen — it would have little practical recourse. The Republican majority has two seats to spare and no prospect for reversal for a long time to come.

The important news from Jackson’s confirmation was not that Democrats managed to seat a justice; their possession of a Senate majority and the presidency made that a foregone conclusion. The news was that Democrats would not get another justice confirmed without controlling the Senate.

When McConnell announced in 2016 that he would not permit a hearing for any Supreme Court nominee put forward by Barack Obama, his stated rationale was that it would be improper for the Senate to confirm anybody during an election year. An army of conservative pundits came forward to vouchsafe this rationale. “Only once in U.S. history (in 1888) has the Senate acted before Election Day to confirm a justice who was nominated in the last year of a presidential term by a president of the opposing party,” insisted National Review’s Dan McLaughlin.

It was perfectly obvious at the time that McConnell had simply concocted an arbitrary time frame, but conservatives put up a great show in pretending the distinction between election-year nominees and justices nominated other times had real meaning. But McConnell is now dispensing with the pretext and openly refusing to commit to holding hearings for a Democratic Court nominee at all, election year or no. As far as I can tell, the number of conservatives who disagree with him is zero.

The old norms governing Supreme Court nominations generally meant that a well-qualified jurist from within that party’s mainstream would command overwhelming approval from senators in both parties. But that expectation relied on the shared belief that judges were ideologically unpredictable. (Because, indeed, they were.)

In the new world, confirming a Supreme Court justice is just like passing any other part of the president’s agenda: You either have a majority of the votes in Congress or you don’t get it. It will now become routine for Supreme Court seats to stay vacant for years until one party controls the presidency and the Senate.

In practical terms, this will make it nearly impossible for Democrats to take back the Court in the near future. As Simon Bazelon argues, the median Electoral College state is now roughly four percentage points more Republican than the country, and the median Senate seat is about three percentage points more Republican than the country. Democrats have managed to eke out 50 seats by coasting on previous wins in red states, but the advantage to incumbency is shrinking, while the correlation between how a state votes in presidential elections and how it votes in Senate elections is rising. Bazelon forecasts that Republicans will probably hold somewhere between 56 and 62 Senate seats after the 2024 elections.

Republicans happen to have control of the Court as it is growing far more partisan and as its partisan composition is growing much harder to change. The answer to why they don’t want to change the system is so self-evident that McConnell didn’t even bother to offer one up in his response to Swan: When the wheel stopped turning, they happened to be on top.

Why KBJ Will Be the Last Democratic Justice for a Long Time