Is the U.S. Supreme Court Facing a Crisis of Democratic Legitimacy? A Review Article

Abstract

Abstract Kevin McMahon's A Supreme Court Unlike Any Other examines the extent to which the current Supreme Court—and its conservative supermajority—departs from earlier courts in the extent to which it suffers from a “democracy gap.” McMahon persuasively argues that the current Court is different for two reasons. First, most of the justices in the conservative majority were appointed by presidents who did not win the popular vote and/or were confirmed by senators who represented fewer voters than the senators who opposed them. Second, the homogenization of nominee experience and background has created a “judicial aristocracy” in which the justices are experientially far removed from the elected branches. One puzzle this account raises is why this democracy gap took so long to emerge, given the institutional design of the Court. But given the current polarized state of American politics, the same forces that brought us to the reality of the conservative supermajority are unlikely to abate for quite some time.