The Partisan Referee
Every game needs a referee. Someone has to call the fouls, interpret the rules, settle the disputes. The players can disagree with the calls. They can think the ref got it wrong. But if they want the game to continue, they have to accept that the ref’s call is final. The alternative is chaos: every disputed play becomes a brawl, and eventually no one wants to play anymore.
Democracy is no different. Democratic competition requires an arbiter, someone who can resolve disputes about the rules, determine who won, and settle conflicts between the branches of government or between the government and the people. In the American system, that arbiter is, ultimately, the courts. And at the apex of the system sits the Supreme Court.
This arrangement only works if people believe the arbiter is legitimate. They do not have to believe that the arbiter is always right, always perfect. Just that it is on the level: genuinely trying to be fair, applying the rules rather than making them up, and not wearing a team jersey under the robe. The moment people stop believing that, the whole system is in trouble.
We may be in that moment.
The Supreme Court was never a perfectly neutral institution. No one should make the mistake of thinking it was. It has always been shaped by politics, by the ideologies of the justices, by the temper of the times. Appointing judges is one of the spoils of the political system. How could the Court not be shaped by politics? Anyone who tells you otherwise is selling something.
But there is a difference between an institution that is influenced by politics and one that appears to be partisan. There is a difference between a Court whose decisions you disagree with and a Court you believe is simply delivering victories to one side. The first can still function as an arbiter. The second cannot.
The problem is more nuanced than “it used to be perfectly neutral and now it isn’t.” The problem is that now it appears to be partisan. The Court has sorted itself perfectly along our partisan divide, and our partisan divide now replicates every other division we have. I’ve written about the problem of partisan sorting, and the point is that the divide is perfectly reflected on the Court.
This is new. And this is why the public’s trust in the Court—in the arbiter, the referee—is in free-fall.
Start with the confirmation process. Supreme Court nominations have become purely partisan affairs, with votes falling almost entirely along party lines. It did not used to be this way. Ruth Bader Ginsburg was confirmed 96–3. Antonin Scalia was confirmed 98–0. Even as recently as 2005, John Roberts was confirmed 78–22. But the last three justices confirmed to the Court received almost no votes from the opposing party. When the confirmation process looks like a partisan brawl, it’s hard to maintain the fiction that what emerges is neutral.
Then there is the matter of how the current Court came to be composed as it is. In 2016, Senate Republicans refused to hold hearings on Merrick Garland, President Obama’s nominee to replace Justice Scalia, on the theory that the seat should not be filled in an election year. It was nine months before the election. Not one had heard of this principle before, but in the abstract, it might be defended on the grounds that the country would soon have an opportunity to have its say by shaping the Senate that would confirm the nominee.
But it soon be clear that the only principle that mattered was the principle of power. You see, just four years later, when Justice Ginsburg died six weeks before the 2020 election, the very same Republicans rushed through Amy Coney Barrett’s confirmation. It was never about giving the people their say over the makeup of the Senate and thus the Court. It was always about the Republicans using all means at their disposal to select the refs.
Would the Democrats have done the same if the roles were reversed? Maybe! The argument is not “Republicans bad; Democrats good.” It is that what once was a moderately political process for choosing the refs has simple become a partisan affair. And what matters, in the end, is what the public sees. To millions of Americans, the current Court includes two justices whose seats were obtained through raw partisan maneuvering. One seat was, in their view, stolen; another was filled through rank hypocrisy.
The Court has done itself no favors. In the past few years, it has issued a series of decisions that, to many observers, look less like neutral interpretation of law and more like the implementation of a partisan agenda.
It overturned Roe v. Wade in Dobbs, a decision that had been settled law for fifty years, relied upon by millions, and repeatedly reaffirmed. You can believe Roe was wrongly decided and still recognize that overturning it signaled something profound about the Court’s willingness to upend precedent when the votes are there.
It has dramatically expanded gun rights, struck down affirmative action, expanded religious exemptions from laws that apply to virtually everyone else, curtailed the power of federal agencies to regulate, and granted former presidents sweeping immunity from criminal prosecution. Each of these decisions aligns neatly with Republican policy preferences. Each was decided by a 6–3 or 5–4 majority of Republican-appointed justices over the dissents of Democratic-appointed justices.
Again, I am not saying these decisions are necessarily wrong as a matter of law. Reasonable people disagree in good faith about many of them. You could agree with nearly all of these decisions on the merits and still be troubled by what they reveal. The problem is the pattern: every close case breaking the same direction, in ways that track party more than anything else. It becomes very hard to maintain that the Court is calling balls and strikes. One team’s jersey is peeking out from underneath the robes.
And then there are the ethics scandals. Justice Thomas has accepted years of lavish gifts and travel from a billionaire Republican donor without disclosure. Justice Alito flew politically charged flags at his homes and has refused to recuse himself from cases involving the events those flags referenced. The Court has resisted adopting a binding ethics code, and the code it eventually adopted has no enforcement mechanism.
For an institution whose legitimacy depends entirely on the perception of impartiality, this is catastrophic. It doesn’t even matter whether the gifts actually influenced any decisions. It matters that they create the appearance of impropriety, and that the justices involved seem not to care. When the ref is taking gifts from one team’s owner and hanging that team’s flag in his yard, it’s hard to believe his calls are unbiased.
Why does this matter for democracy?
I have argued throughout this series that democracy requires certain conditions. People have to believe they can win (reversibility) and that losing won’t destroy them (survivability, which comes in structural, individual, and economic forms). But there’s another condition implicit in both of these: people have to believe there is a fair process for determining who wins and who loses. They have to believe the game is being played according to rules, and that someone trustworthy is enforcing those rules.
The Supreme Court is, in the American system, the ultimate enforcer of those rules. It decides whether elections were conducted properly, whether laws are constitutional, whether the president has exceeded his authority. When the Court loses legitimacy, there is no backup. There is no higher arbiter to appeal to. There is just power.
Consider what happens when people stop trusting the referee. In sports, they refuse to accept the outcome of games. They accuse the league of rigging results. They stop watching. The whole enterprise of sporting competition collapses. In democracy, the consequences are similar. But of course, the stakes are much, much higher. People stop accepting election results. They view laws they disagree with not as legitimate exercises of democratic authority but as impositions by an illegitimate regime. They begin to believe that the system is rigged against them, that the rules don’t apply equally, that their opponents are not just wrong but cheating.
This is where the loss of an arbiter connects to reversibility and survivability. If you believe the referee is fair, then losing a close call on elections or on some substantive issue you care about is frustrating but acceptable. You got a fair hearing. Maybe you’ll win the next one. But if you believe the referee is corrupt, then every loss feels like theft. And if losing means having your rights stripped away by a Court that you believe is just an arm of the opposing party, then losing feels existential. Irreversible and not survivable.
It is easier to knock down a building than to rebuild it. That’s true for the legitimacy of the Court too. Once people stop believing, persuading them to believe again requires not just words but demonstrated change over time.
The options are familiar: term limits for justices, expanding the Court, a binding ethics code with real enforcement, requiring supermajority votes to overturn precedent or strike down laws. Some of these ideas are better than others. Some might introduce new problems. Some would require constitutional amendments. Some might backfire, further politicizing an already politicized institution. None is a silver bullet. But doing nothing is also a choice, and it is not a neutral one.
I do not have a straightforward answer for how to rebuild the Court’s legitimacy. But I have some thoughts, which I will share in a future essay.
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