Brett Kavanaugh, the partisan hack and perjurer, is now on the Supreme Court. This is a sickening time for America, where the Republican Party told you exactly what it is, whom it cares about, and whom it doesn’t care at all about. We’ve seen the continuation of a total collapse of any sense of fair play whatsoever.
I say this to anyone who finds it mentally exhausting to parse their excuses and rationalizations of the likes of Susan Collins: You don’t have to. You don’t have to waste the energy to convince yourself that 2+2 still equals four and not ten; that Kavanaugh is credibly, multiply accused; that he is no moderate nor independent thinker; that the FBI investigation was “thorough”; nor any of the attempted misdirects. This is as bad as it seems, and you needn’t let bad faith arguments cloud your own perceptions, not one bit. 2+2 = 4.
The Supreme Court will now lose legitimacy. It will hand down rulings that are inconsistent with the plain language of duly passed law, the Constitution, and common sense — but in lockstep with the demands of those who worship money. We don’t yet know what that concept, loss of legitimacy, means in practice. After all, the Supreme Court has no enforcement mechanism of its own. But its rulings will be met with extreme skepticism and political and practical resistance, not the good-faith deference it has typically enjoyed. The court’s rulings will cease to have any normative, legitimizing effect in the political sphere. As Matt Yglesias points out (he’s been very good on this), this cancerous, overt politicization of the court has been happening for 20+ years; but now it is laid bare as a vehicle for hyper-partisan aims, not disinterested justice under the law, rationalized by anodyne terms like “originalism”, “textualism”, and so forth. As I’ve mentioned, Kavanaugh lauded late Chief Justice Rehnquist’s refusal to recognize supposedly unenumerated rights not rooted in the “traditions and conscience of our people”. Whose tradition? Whose conscience? With this malignant, capricious little phrase, conservative judicial philosophy achieves escape velocity, ending up well beyond the pull of gravity to any actual text or lived reality. It is Humpty Dumpty law: “Tradition and conscience” means just what I choose it to mean, neither more nor less. The question is whom is to be master — that’s all.
The activist conservative court is not calling balls and strikes; they’re redefining the strike zone. If you’re vastly wealthy, your strike zone is a postage stamp. But if you’re a normal person; young; female; a minority, LGBTQ+ or other disfavored group; have need of health care; need clean air or a livable planet — that’s basically all of us — your strike zone is a foot outside and a foot over your head.
Women will not simply allow their reproductive rights to be taken from them. Young people will not stay idle as their futures are snatched from them and given to fossil fuel companies. Those things will only happen literally over our dead bodies. Like termites, we’ll adopt tactics that work around, degrade, and devour oppressive structures, tiny chunk by chunk. We will unapologetically adopt bare-knuckle procedural tactics to protect ourselves. We will jam the channels of propaganda that fuel the right wing’s voracious appetite for the power of spite. We will flood the streets and demand attention. And we will vote, and get out the vote, and demand that our own electeds protect our rights and future with tenacity, not give in with resignation.
It is long past time to get very creative with our responses. We have to win this coming election, yes; but we need also to think long-term about how to counter this manifestly undemocratic court coup at every level of life, politically and culturally.