Political science professor offers timely perspective on presidency, Supreme Court
By Andrew Faught
The question is provocative: Does the Supreme Court lack legitimacy?
In April 2017, for the first time in American history, explains Kevin J. McMahon, John R. Reitemeyer Professor of Political Science, a “minority president”—given that Donald Trump won the presidency but lost the popular vote in 2016—successfully appointed a “minority justice” to the Supreme Court.
What does McMahon mean by a “minority justice”? When the Senate confirmed Neil Gorsuch, the vote was an unusual one. The 45 senators who opposed him had won their own seats with nearly 22 million more votes than the 54 senators who had supported his confirmation.
The same dynamic occurred in the confirmation vote of Brett Kavanaugh, the replacement for retiring Anthony Kennedy, the longtime swing justice. But in Kavanaugh’s case, the difference was even starker. He secured confirmation after a tight 50–48 vote, but the popular vote difference between the senators opposing Kavanaugh compared with those supporting him was more than 24.5 million.
“That raises a question that goes to the heart of the Supreme Court’s legitimacy in our democracy,” McMahon wrote in July 2018 in The Conversation, an online publication that features commentary by academics and researchers. “Will this be a court out of line with America?” The same theme was the focus of a New York Times op-ed in October 2018, which highlighted McMahon’s research. McMahon’s observations were picked up by multiple writers and commentators, putting him in the news numerous times.
McMahon, a member of the Trinity faculty since 2005 and director of the college’s graduate program in public policy, is an expert in matters of the Supreme Court and the presidency. In 2014, the Supreme Court Historical Society awarded his book Nixon’s Court: His Challenge to Judicial Liberalism and Its Political Consequences (University of Chicago Press, 2011) its prestigious Erwin N. Griswold Book Prize. The book also was selected as a 2012 Choice Outstanding Academic Title. McMahon’s first book, Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown (University of Chicago Press, 2004), won the American Political Science Association’s Richard E. Neustadt Award for the best book on the American presidency published that year. McMahon also is the co-author or co-editor of three volumes on the presidency and presidential elections and the author of numerous book chapters and journal articles.
His insight is sought frequently for media outlets covering the issues of the day. In addition to being cited in The New York Times, he has had an op-ed published by CNN and has been interviewed on WNPR, the BBC, shows in Australia and South Korea, and multiple local TV and radio stations.
At Trinity, McMahon’s courses include “Constitutional Powers and Civil Rights” and “Civil Liberties.” He describes his teaching style as “Socratic in spirit,” encouraging a classroom where students challenge one another to think more critically and on deeper levels. While news accounts have postulated the threat of a constitutional crisis, students in his courses are taking their own deep dive into the executive and judicial branches of American government.
“I ask students to become constitutional interpreters in their own right,” McMahon says. “I think Americans are often fearful of the Constitution. The Supreme Court is this pristine white building, the justices sit very high, and they wear black robes. They’re sort of unknown entities, somewhat mysterious to most of us. The idea of these courses is for students to understand that the Constitution is a document for everyone. We as students of political science and the law should be able to understand it as a Supreme Court justice does.”
McMahon, who developed an interest in the presidency and Supreme Court as a doctoral student at Brandeis University and a teaching fellow at Harvard, uses a moot court exercise in two of his courses. In that exercise, students act as either attorneys or justices arguing or deciding a hypothetical case based on a current constitutional controversy. And just like in real life, the attorneys are responsible for writing briefs while the justices write opinions.
Political science major Olivia Doman ’19, who took part in such a moot court as a student in McMahon’s “Civil Liberties” course, says he encouraged discussions reflecting all points of view. “The best teachers don’t expect you to absorb and regurgitate the information you’re told,” Doman says. “Regardless of how conservative or liberal you were, he was never trying to push someone into a different viewpoint, and I thought that was awesome.”
That sentiment is echoed by Posse Scholar Anthony Davis ’20, a public policy and law major who as a sophomore took McMahon’s “Civil Liberties” and “American Presidency” courses. “The classroom really became an arena to learn, engage, and break down barriers,” Davis says. “It’s difficult to talk about politics in modern America because of how divisive it can be. It can be difficult for a professor to lead, teach, and even offer opinion-less content, but Professor McMahon did it profoundly.”
Bryce Schuler ’19, a political science major who took three classes with McMahon, says he appreciates the professor’s teaching style. “I really like the seminar format in classroom discussions,” Schuler says. “And one thing Professor McMahon does really well is encourage opposing viewpoints and facilitate discussions around different beliefs.”
Schuler also served as the teaching assistant for McMahon’s fall 2018 online course offered through TrinityX, the college’s partnership with the edX platform. “The Presidency and the Shape of the Supreme Court,” McMahon’s first TrinityX course, enrolled about 1,000 students located around the world.
Beyond the classroom, McMahon co-chairs the governance board of the Connecticut Institute for the 21st Century (CT21), a nonprofit think tank that brings together public and private leaders to promote economic development and good governance in the state. In February 2018, the college entered into a partnership with CT21, an arrangement called CT21@Trinity. The collaboration fosters the research and examination of pressing policy issues while creating real-world experiences for graduate students.
Whether future Supreme Court decisions could have any bearing on the work of CT21@Trinity is yet to be seen. “There’s certainly the potential,” McMahon says. “A lot of times we focus on these hot-button, culture-war issues. But the Supreme Court reaches decisions on a wide range of policies that impact our everyday lives.”
In his role with CT21@Trinity, McMahon will oversee the production of “high-caliber, high-impact reports that can shape the timeliest public policy debates in Connecticut,” says Sonia Cardenas, vice president for strategic initiatives and innovation and dean of academic affairs. “More broadly, CT21@Trinity will serve over time as a forum in Hartford and the state for insightful commentary and debate on some of the most vital public policy issues of the day,” she adds.
McMahon, meantime, continues to monitor the daily headlines, of which there is no shortage related to the president and the Supreme Court.
The High Court, in the eyes of most observers, appears to be tilting to the right with Kennedy’s retirement and Kavanaugh’s confirmation. What does it mean for future court cases?
“Roe v. Wade is certainly the most significant, politically salient case,” McMahon says. “I think the Court will chip away at the right to choose now that Kavanaugh has joined the Court and there is a majority of conservative justices in place for the foreseeable future. That doesn’t mean abortion will be illegal across the country. Even if Roe is overturned, the issue will return to the states. Some states will outlaw the procedure, while others will restore the right to choose. Women without the means who live in the first group of states—those women who cannot afford to travel to other states—will no longer have this right.”
As for guns, conservatives secured a victory in 2008 with the District of Columbia v. Heller case, in which justices held 5–4 that the Second Amendment guarantees an individual’s right to possess firearms independent of service in a state militia. “In the past, the Second Amendment has been interpreted differently,” McMahon says. “(Heller) is unlikely to change. It will just be more firmly secured.”
In other areas, campaign financing likely will continue “in the conservative direction,” McMahon predicts. “I think the constitutionality of same-sex marriage is unlikely to be challenged in any significant way. This is an issue that’s more generational, and in many ways the die has been cast in a way that isn’t true with the abortion issue. But having said that, the Court doesn’t always reach the decisions we expect.”
Schuler says he has enjoyed learning about concepts that carry through time, starting with the very beginning of the Supreme Court, seeing how those concepts have changed and how they haven’t, and taking note of what’s happening now. He says of McMahon’s classes: “They provide the historical and conceptual contexts to understand what is going on directly in front of your eyes.”