Justice delayed: The Supreme Court is often behind the country


With Justice Anthony Kennedy’s retirement from the Supreme Court, the America of 1950 is now positioned to write the legal rules for the America of 2050.

That may slightly overstate the likely longevity of the five-member conservative Supreme Court majority that will lock into place if and when the Senate approves President Donald Trump’s nominee to replace Kennedy.
But potentially for decades, the court could be controlled by justices nominated and confirmed by a Republican electoral coalition rooted in the parts of the country least touched by the seismic economic, cultural and demographic changes reshaping 21st-century America.
That points to a widening gap between the ideological perspective dominant on the court and the lived daily reality for a growing share of the country. In the past — as in the 1850s with slavery or in the 1930s with the New Deal — that disjunction has proved an explosive combination in American politics.
“If you want a metaphor, in the scenario you are talking about, it is like two tectonic plates that are locked and trying to move in opposite directions,” says William Galston, a senior fellow at the Brookings Institution who’s the author of the new book “Anti-Pluralism: The Populist Threat to Liberal Democracy.”
Almost always, the Supreme Court is a lagging indicator of the relative standing between the two parties. Because justices serve for many years, it is not unusual for the court’s composition to bear the imprint of presidents and Senate majorities that governed years, if not decades, earlier. Kennedy, for instance, was confirmed during the Ronald Reagan administration, before the youngest voters in the past three presidential elections were born.