Minority Rule, the Legitimacy of Courts, and a Penny Bet

July 12, 2018
Posted by Jay Livingston

It’s almost certain that the Republicans in the Senate will confirm Trump’s Supreme Court nominee. And when they do, they will speak glowingly about democracy and convince themselves that they are carrying out the will of the people.

In 2006, I was having coffee at Zabar’s café one morning with a conservative I knew. We were talking about Bush’s nomination of Alito to the Supreme Court. The Democrats were wrong to oppose Alito, said my coffee companion, because most Americans wanted him confirmed. (He also said that those who opposed Alito were “disloyal,” but that’s another matter.)

As Robin Hanson says, a bet is a tax on bullshit, so by way of calling bullshit on him, I offered him a bet — a penny bet.

“When the Judiciary Committee votes on Alito,” I said,”some will vote for him, others will vote against. America is a democracy. Our senators are elected democratically. So I’ll give you a penny for every person who voted for the senators who vote for Alito. Then you give me back a penny for every person who voted for the senators who vote against.” I offered him the same bet for when the full Senate would vote on the nomination.

He declined my offer. He may have been deluding himself about what the American people wanted, but he wasn’t stupid enough to take the bet.

I’d love for someone to take this same penny bet on Kavanagh. After all, the Republican senators outnumber the Democrats 11-10 . But if the vote goes along party lines, I’ll walk away with nearly $80,000. Another penny bet on the full Senate would add about $20,000.

Far more important than my potential $100K windfall, is the issue of legitimacy.

In December 2000, the Supreme Court ruled against Al Gore, halted the Florida recount, and gave the presidency to George W. Bush.. The majority of the justices had been appointed by Republican presidents (including one appointed by Bush’s father). The next day, Gore made a speech saying that while he disagreed with the Court’s decision, he accepted it. He was upholding the legitimacy of the Court and the president-elect. Can anyone imagine Trump doing anything like that?

The Court, like other political institutions is losing the confidence of the American people, at least according to Gallup.

I’m not sure whether surveys like Gallup are measuring reactions that are specific to the Court or just a more general feeling about government. But the current and future Court provides ample material for questions of legitimacy. Trump lost the popular vote by nearly 3 million, and his first Court appointment, Gorsuch, was made possible through an unprecedented and blatantly political maneuver by Mitch McConnell, whose party represented a minority of voters as it will when it confirms Kavanagh.

What will happen to the Court’s legitimacy if Trump’s appointees wind up ruling on cases directly involving Trump that emerge from the Mueller investigation?