A Supreme Court straying farther from mainstream

Posted on Aug 23, 2018

A paper by Kevin J McMahon of Trinity College in the Chicago-Kent Law Review suggests so.

Supreme CourtAn interesting examination of the concept of "minority justice" and the ramifications of the fact that Neil Gorsuch is the first Supreme Court justice in the history of the US to be seated by a president who did not win the popular vote and also by a majority of senators who were collectively elected by a fewer number of votes than the senators in opposition. Far fewer votes actually, 20 million fewer. The paper discusses the concept of democratic legitimacy and puts it in historical context.

Three of the most recent and most conservative members of the court were all seated similarly - while they don't have the distinction of having both a minority vote president and senate like Gorsuch, they were all seated with a minority Senate of varying degrees. This development seems to run counter to the old thinking that the high court "seldom strays far from the mainstream" because the more recently seated justices seem to be advocates of concepts of law that an ever increasing majority of citizens disagree with.

https://scholarship.kentlaw.iit.edu/cklawreview/vol93/iss2/4/