December 30, 2019 1:34PM

Disputed Appointments and the Supreme Court’s Legitimacy, in 1937 and Today

Here is news you probably can’t use: a new Texas Law Review analysis by University of Chicago law professor William Baude concludes that Justice Hugo Black, who served on the Supreme Court from 1937 to 1971, was unconstitutionally appointed.

The relevant text is the Constitution’s Article I, Section 6, which says “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time.”

At the time of his appointment Black was serving as a senator from Alabama as part of a Congress that had enacted new retirement benefits for Justices, and while his backers argued that the clause did not apply to bar his nomination, Baude concludes that it probably did. One litigant before the high court challenged Black’s right to serve, but the Court chose to sidestep the merits of that claim by ruling against its standing, and the controversy died.

All of this might seem purely academic. At this remove there would be no way to unscramble the legal omelet as to Black’s jurisprudential contributions, even were there a will. (Despite an unpromising start, the Alabaman eventually showed a libertarian streak on many Bill of Rights issues.)

But the issue is not quite so remote as that, because more than a few contemporary commentators have flirted — in some cases more than flirted — with claims that the makeup of the present Supreme Court is illegitimate.

After the Senate leadership refused to hold hearings on the Supreme Court nomination of Merrick Garland, the editorial board of the New York Times repeatedly declared the seat of the late Justice Scalia to have been “stolen,” and then‐​Rep. Keith Ellison (D‐​Minn.) said of eventual nominee Neil Gorsuch that “he’s not there properly.”

The confirmation of Brett Kavanaugh to the seat vacated by Justice Anthony Kennedy brought renewed attack, with former Attorney General Eric Holder declaring that “the legitimacy of the Supreme Court can justifiably be questioned” and other high‐​profile figures taking a similar line.

Law professor Erwin Chemerinsky raised the ante with this remarkable assertion in The American Prospect: “each of the five conservative justices — Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, and Kavanaugh or someone like him (emphasis added) — came on to the Court in a manner that lacks legitimacy. … Perhaps at some point it will lead to open defiance of the Court.”

Other commentators were happy to take up the exciting theme that future Court opinions written by, or decided by the votes of, Gorsuch, Kavanaugh, and perhaps other Justices might meet with open defiance or resistance from a future Democratic president, from state officials, or from people “marching in the streets.”

“What can the Supreme Court do? Send its tiny police force to storm the White House?” wrote Mark Joseph Stern at Slate. Libertarian‐​minded law professor Ilya Somin, who does not welcome the efforts to de‐​legitimize the Court or promote defiance of its rulings, nonetheless found them worth taking seriously enough to analyze at length last year.

Baude’s research may provide a bit of reassurance in this respect. The challenge to the legitimacy of Black’s seat fizzled in part because it gained little headway with the public, but much more because the Court’s other Justices welcomed Black aboard.

Most of the scenarios in which triumphant Democrats in 2021 or 2022 defy Supreme Court rulings are difficult to reconcile with the reality that the Court’s liberal Justices have, to all appearances, been entirely content to regard Gorsuch and Kavanaugh as legitimate colleagues, and would, themselves, neither counsel nor welcome defiance of Court rulings. As I wrote last year, “the federal courts are not as polarized and tribal as much of the higher political class and punditry at nomination time.” 

Baude puts it this way at the conclusion of his article: “the real source of constitutional settlement in our system is not always judicial decision, but sometimes sheer practice.”