Is the Supreme Court’s legitimacy undermined in a polarized age?

Source: Kevin J. McMahon, The Conversation, July 7, 2018
When I learned Justice Anthony Kennedy would retire, my thoughts went immediately to the confirmation of the newest justice, Neil Gorsuch.

The Senate’s confirmation of Gorsuch was unprecedented in the history of the country. Never before had a “minority president” named a “minority justice.”

I’m a scholar of the presidency and the Supreme Court. I will soon publish an article in the Chicago-Kent Law Review that considers the concepts of a “minority president” and a “minority justice” in relation to presidential appointments to the High Court for much of American history.

Here’s what I mean by these terms.

Court out of step with America?

Since Donald Trump lost the popular vote in the 2016 election, he is, by definition, a minority president, elected by a minority of the voters.

Similarly, I define a “minority justice” as a nominee who won confirmation with the support of a majority of senators, but senators who did not represent a majority of voters.

Consider Gorsuch. He was supported by a majority of senators – 51 Republicans and three Democrats. But the votes earned by those 54 senators only added up to a total of 54,098,387.

The 45 senators who opposed Gorsuch, all Democrats, collected 73,425,062 votes in their most recent elections – a nearly 20 million-vote difference…..