Kevin J. McMahon’s A Supreme Court Unlike Any Other offers an insightful and thought-provoking analysis of the historical developments behind today’s widespread public dissatisfaction with the U.S. Supreme Court. The central premise of the book is that the Court has become too out of touch with American society. McMahon labels this the Supreme Court’s “democracy gap” problem.

McMahon’s concept of a democracy gap builds on the work of scholars, most notably the political scientists Robert Dahl and Robert McCloskey, who argue that the Court historically has been a majoritarian institution whose rulings, over time, align with the interests of the dominant political regime. According to these scholars, public confidence in the Court derives from the justices’ ability to read the political landscape and to avoid getting too far ahead or too far behind American society – to minimizing the democracy gap. This dynamic has broken down in recent decades, McMahon argues, widening the democracy gap and threatening the Court’s legitimacy. The goal of the book is to explain what happened.

McMahon’s explanation centers on two historical developments. The first is the demise of dominant political regimes. For the Court to operate in the majoritarian manner Dahl and McCloskey identified requires the existence of clear electoral mandates on basic principles of American governance. Today we live in an era of divided government and narrow presidential elections. Our fractured political landscape has created a new phenomenon that McMahon labels “numerical minority justices”: justices who are confirmed to the Supreme Court over the opposition of Senators who represent a majority of the American people. Apart from Chief Justice John Roberts, all of the Republican appointees to the current Court fall in this category. “A Court comprising numerical minority justices is both new historically and troubling for democratic legitimacy,” McMahon writes, warning that such a Court is likely to resist “the majoritarian traditions of the Court” (3). As evidence of the impact of numerical minority justices, he cites the 2022 Dobbs opinion, in which the Court overturned a constitutional right to abortion that a clear majority of Americans supported.

The second shift McMahon identifies as contributing to the widening democracy gap is the narrow pool presidents draw from when selecting Supreme Court nominees. Whereas justices of the past had varied educational backgrounds and work experiences, often including service in the elected branches of government, nearly all recent appointees have had similar elite educations and careers in the federal judiciary. This produces a “cloistered, cookie-cutter Court” (99). “Justices of the past had close ties to the elected political leadership, which provided the decisions they handed down more democratic legitimacy,” McMahon writes. “They were more a part of the dominant governing regime than a distinct autonomous force perceived to be ideologically sympathetic to a particular party momentarily in power” (195). The result is a volatile situation: a Court insufficiently attuned to politics is a threat to the prerogatives of the elected branches; and such a Court is at risk of retribution by these same elected branches.

The book ends with a discussion of how the American people might respond to a Court that has lost touch with the American people. After assessing now familiar proposals for Court reform such as expanding the number of justices and term limits, McMahon suggests that the only way to truly fix the problem is through politics: progressives need to figure out how to translate their slim national electoral advantage into a dominant political regime. Even a Court that has become more insulated from majoritarian pressures would eventually, one way or another, fall in line with such a reconfiguration of American politics. If nothing else, the appointment of new justices would bring the ideological character of the Court into alignment with majoritarian sentiments. “In order for the Court to be imbued with democracy, the people must play their part,” McMahon concludes (291). A more robust, functional democracy will produce a more democratic Supreme Court.

McMahon’s democracy gap argument compellingly illuminates critically important developments in the Court’s recent history. Yet there are also elements of the framework that may strain to capture the complex, contentious place of the Supreme Court in American life today. When we have a fractured, polarized politics without clear electoral mandates, what does it mean to have a widening democracy gap? Dobbs is a centerpiece of McMahon’s argument, showing a Court willing to flout majority preferences on a highly contentious issue. Beyond Dobbs, however, it’s not obvious that the Court’s willingness to go against opinion polls is on the increase. The most obvious pattern in recent years has been a reliable tendency for the Court in high-profile cases to side with the interests of the Republican Party. These decisions sometimes go against majority opinion, sometimes align with it, and often take a side on an issue in which polls show a nation divided. Is this evidence of a democracy gap? Perhaps this a Court imbued with too much of our dysfunctional, polarized democracy.

Regardless of any limitations it might have, in McMahon’s hands the democracy gap framework casts fresh light on a familiar topic, which is no small achievement. One of the great pleasures in this book is to see McMahon explain and defend his thesis by deploying his vast knowledge of Supreme Court and presidential history (he is the author of two excellent previous books, one a study of Franklin Roosevelt’s appointments to the Court, the other a study of Richard Nixon’s). In A Supreme Court Unlike Any Other, McMahon has written one of the most powerful and rewarding works of sociolegal scholarship on the Supreme Court in recent years.