With Kavanaugh on the bench, the court will struggle to retain its authorityby Dahlia Lithwick / October 12, 2018 / Leave a comment
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…