This Article examines the concept of a “minority Justice,” meaning a Supreme Court Justice appointed by a President who had failed to win the popular vote and confirmed with the support of a majority of senators who had garnered fewer votes in their most recent elections than their colleagues in opposition. Specifically, Neil Gorsuch was the first “minority Justice,” receiving the support of senators who had collected nearly 20 million fewer votes than those in opposition (54,098,387 to 73,425,062). From there, the Article considers the significance this development, first by examining some of the foundational work of the regime politics literature, and then by exploring the historical linkages between the presidential popular vote from 1824 to 2016 and the Senate’s consideration of Supreme Court nominees during that same time period. It concludes with a discussion of the democratic legitimacy of a minority Justice, considering the constitutional mandate allocating each state two senators and requiring the “advice and consent” of the Senate for a nominee to become a Supreme Court Justice.
Kevin J. McMahon,
Will the Supreme Court Still “Seldom Stray Very Far”?: Regime Politics in a Polarized America,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol93/iss2/4