With Kavanaugh on the bench, the court will struggle to retain its authorityby Dahlia Lithwick / October 12, 2018 / Leave a comment
Published in November 2018 issue of Prospect Magazine
Lofty judge, crusading conservative: Chief Justice John Roberts. Photo: AP/SHUTTERSTOCK As the Brett Kavanaugh confirmation nightmare sinks into American memory, some things will happen very quickly. Donald Trump’s celebratory shouts will fade, and Kavanaugh will quietly settle into his seat on the Supreme Court. The other eight justices, regardless of their personal view of his furious, partisan testimony at a Senate hearing dominated by sexual assault allegations, will give him cover, papering over the cracks to insist that the family is a happy one. Elena Kagan, one of the justices picked by Barack Obama, said that the lone superpower of the court is public acceptance and respect: “All of us need to be aware of that—every single one of us—and to realise how precious the court’s legitimacy is.” The court had to guard its “reputation of being impartial, being neutral and not being simply an extension of a terribly polarising process.” That’s always been the theory, but how feasible is it today? Constitutional law professors have been wondering aloud how they can neutrally teach case law after signing a letter opposing Kavanaugh’s elevation (over 2,400 professors nationwide did so). Some say they believe the court has now been irredeemably politicised. And, of course, the #MeToo movement will surge on, with many women lining up behind Christine Blasey Ford, whose testimony of abuse they found credible and compelling. November’s mid-term elections will be spiced up by the energy of furious women on one side, and vindicated Kavanaugh supporters on the other. We wait to see which way that momentum plays out. The court itself will work doubly hard to fade into the background. Under the steady hand of Chief Justice John Roberts—an institutionalist who is instinctively allergic to his court becoming a political football—we may have a few months, even a term, of cautious, narrow opinions. Roberts can see to it that hot-button cases are held off until tempers cool. (The Supreme Court selects its own docket.) He can assign contentious opinions to moderate authors. He likely will use his own role as the new swing vote— there are now four justices solidly to his left and four to his right—to ensure that instead of big, bold changes, the court’s drift to the right will be incremental and undramatic. But nobody doubts that Roberts will remain the life-long movement conservative he is. Long gone is the world where a judge’s rulings had nothing to do with which president happened to have appointed them—the world where the court unanimously ruled that Nixon must hand over the Watergate tapes without being distracted by the partisan implications. Whether Roberts proves to be a fifth vote to strike down protections for abortion, affirmative action, and to curb voting rights with the stroke of a pen, or merely to check these rights in small but certain steps, those rights will be limited. He will be the fifth vote to shrink the authority of regulatory agencies; the fifth vote to protect business over workers’ rights; the fifth vote to chip away at gun regulations; and, the fifth vote to allow religious dissenters to opt out of civil rights and public accommodation laws. We don’t know how or when this will happen, but happen it will. For the first time in decades, the court’s swing vote will not be a vote cast from the centre—one cast with different blocs in different landmark cases, as that of newly- retired Anthony Kennedy was, for example, on abortion, affirmative action and the juvenile death penalty. Every sitting justice will have been appointed by a president of their own party: the liberals have all been seated by Democrats, the Conservatives all by Republicans. This president—who lost the popular vote—has now seated two Supreme Court justices. Four sitting justices have been confirmed by Republican senators who collectively won fewer popular votes than the senators who voted against confirming them. A minority-majority president and a minority-majority Senate have remade the court in their own image, and completed that process by installing a singularly divisive nominee. The resulting court has five of the most conservative jurists to serve in the past century, and will prove dramatically more conservative than the bulk of the US electorate. This, then, is the reality confronting Roberts, as he struggles to regain the court’s cloak of invisible legitimacy in the weeks to come. Some say it’s long past time that Americans gave up on the illusion that the court is an apolitical institution. Others claim the court’s liberal wing, relieved of the need to try to secure an ephemeral fifth vote, can reclaim its voice as a strong dissenting minority. Yet others argue that Roberts himself may tack towards the centre in the coming years. It is too early to tell. But the court will not have so long to recover its standing as a neutral oracle: cases testing the boundaries of Trump’s executive authority, his treatment of immigrants and refugees, and possibly, someday even the legitimacy of Special Counsel Robert Mueller’s investigation into Russian election meddling will soon pile up on its doorstep. There cannot, for long, be any hiding from the front pages, or from making highly-charged calls. Attention spans can be short. After the Kavanaugh debacle, however, the Court could find more citizens than ever suspect its practice is directed by partisan convenience, not by law.