Much ink has been spilled over Supreme Court Justice Clarence Thomas’s failure to recuse himself from cases involving the 2020 election, despite his wife’s participation in efforts to overthrow it.
Those are sensible calls. But meanwhile, too little attention has been paid to another shattering blow to the Supreme Court’s legitimacy: the presence of a judge who sits in defiance of the Constitution.
The Supreme Court makes decisions that directly affect our personal lives—from abortion to college admissions and COVID-19 precautions. The court also makes decisions that affect our democracy, such as whether states can manufacture obstacle courses to voting.
For decisions to be entitled to respect, the justices must be appointed fairly and in a manner consistent with the Constitution. That includes each president having the opportunity the Constitution provides to appoint justices reflecting his or her judicial philosophy.
Justice Neil Gorsuch fails that test because he was appointed in defiance of our Constitution. The court’s decisions cannot be deemed legitimate when one of its members should not be on the court at all.
The Constitution provides the president “shall” appoint Supreme Court justices. So when Justice Antonin Scalia died in February 2016, President Obama had both the right and duty to fill the vacancy.
The Senate’s constitutional role is to “advise and consent” to nominations. But it has no authority to negate altogether a president’s duty to fill vacancies.
Nonetheless, the Republican Senate refused to even consider any nominee President Obama proposed. Their excuse: it was an election year and the vote should be delayed until “the will of the American people” could be heard 10 months later.
The argument made no sense. The “will of the American people” had already been heard when they elected Obama. A president’s constitutional right to fill vacancies isn’t limited to the first three years of his term.
McConnell later admitted his excuse was false, announcing that if a vacancy occurred in the last year of Trump’s term, he’d let Trump fill it. That’s exactly what McConnell did when he rushed Amy Coney Barrett’s confirmation just eight days before the 2020 election, which Trump lost.
The seat Barrett filled was vacant for barely a month after the death of Ruth Bader Ginsburg. By contrast, the vacancy that was constitutionally Obama’s to fill remained vacant for a year—until Trump could appoint Gorsuch to the stolen seat.
But for Gorsuch’s illicit presence, any 5-4 decision in which he casts the deciding vote would likely have gone the other way. It’s happened repeatedly.
Last year the Supreme Court addressed a Texas law allowing private bounty hunters to sue abortion providers, essentially outlawing all abortions. Gorsuch and four other justices refused to halt the blatantly unconstitutional law.
The same year, in defiance of the Voting Right Act, Alabama engaged in racial gerrymandering, cutting the representation of Black Alabamians in half. Lower federal courts halted the racist move, but Gorsuch joined four conservative justices to suspend that decision.
Gerrymandering also came before the Supreme Court in 2019. North Carolina Republicans—who got 53 percent of the vote there in 2016—drew maps giving themselves 77 percent of the state’s congressional districts. Gorsuch again cast the fifth vote to bless this unfair redistricting.
Thanks to assaults on democracy like these, the Supreme Court has lost its legitimacy. And if McConnell follows through on his promise to block any Biden nominees if Republicans retake the Senate, it may never recover.
In short, the Republican Party has made Justice Gorsuch the receiver of stolen property—and turned the Supreme Court into a GOP hit squad in black robes. He should resign.
But since he won’t, his impact on close cases must always be noted. His 5-4 decisions must be considered illegitimate—and overturned at the first possible opportunity.