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.
fredrichlariccia says
“Sooner or later the Supreme Court follows the election returns.” Finley Peter Dunn
Shame on ANY American who doesn’t vote the straight Democratic ticket on November 6.
tedf says
Charlie, I get it, but I think this is a terrible take. I’m ready to face the slings and arrows of commenters, but I think the kind of approach you’re suggesting is terrible for the Republic. And I say that as someone who, after hearing his injudicious testimony, thinks the Senate shouldn’t have confirmed Justice Kavanaugh’s appointment.
This is the worst passage in the post. Let me count the ways:
1. The Court “will hand down rulings that are inconsistent with the plain language of duly passed law, the Constitution, and common sense.” This doesn’t apply to many of the areas Democrats are the most worried about. Take abortion. Anyone who says a constitutional right to abortion springs out of the “plain language of … the Constitution” or “common sense” is just wrong. The same goes for same-sex marriage, just to take another example. Roe and Obergefell may be good decisions or may be bad decisions, depending on what you think about the outcome and, more importantly, about the reasoning, but no one can say they are self-evidently right in light of the Constitution. The same goes for more abstruse but equally important structural questions like Chevron deference. It doesn’t make sense to say that the Court was legitimate when it reached those holdings but that revisiting them would be illegitimate. (“What about stare decisis?” you ask. Again, no one can say that it was legitimate for the court to overturn, say, Plessy v. Ferguson but that it wouldn’t be legitimate for the court to overturn, say, Roe. And before you kvetch, I know that Plessy can be distinguished from Brown by distinguishing transportation from education, and I think that rather than formally overrule Roe outright the court might well circumscribe it sharply).
2. The Court will “lose legitimacy” and there will be “political and practical resistance” to its decisions. If you mean this purely descriptively, then it’s a fair point, and one that I happen to think the Chief justice and likely other justices will bear in mind when deciding cases, as they have in the past. But it seems to me you may have in mind the use of delegitimization as a political tool. That is a terrible idea, for the same reasons it would have been a terrible idea to say that after Bush v. Gore George W. Bush was “not really the President,” and for the same reasons it was a terrible idea for the right to say that Barack Obama was “not really the President” because of the birther nonsense.
3. Many though not all of the problems that we can expect to face could be solved through the political process rather than through delegitimizing the court. Again, take abortion or same-sex marriage. Both can be addressed legislatively. The same is true of some structural issues like Chevron deference. It is partially but not entirely true of, say, Citizen’s United, where the court seemed to rely on the notion of mandatory disclosures that the law doesn’t actually require and that would only partly address the problem anyway. Perhaps the left is about the savor the fruit of relying too much on the court and not enough on the democratic process to win its victories of the past half-century.
I agree with you that the process of nominations to the Court is broken and has been broken for a long time. The Republican Party is the main but not the sole malefactor (Bork). But intentionally undermining the legitimacy of the Court takes a problem that is merely very difficult to solve and turning it into what could be an insurmountable problem that will never be solved. Is that really in the best interests of the country?
Anyway, I know folks are angry, and the down-rate button is now ready to accept your clicks. But think hard before setting out with the purpose to damage the nation’s highest court.
SomervilleTom says
This comment doesn’t advocate damaging the nation’s highest court.
That damage is being done hourly by the Trumpists and their Fuhrer.
tedf says
Just to make one of my points another way: suppose we set out to deletigimize the institutions of government and succeed. Does that make it more, or less, likely, that voters will decide to participate in the political process? Does it make it more, or less, likely that Democrats will be able to govern effectively when they are in power?
fredrichlariccia says
Trumplicans delegitimized government until they got power. Now that they own ALL government it will be interesting to see if the people want to continue to kneel before them as slaves or stand up against this fascist con puke tyranny as free men.
My fellow Americans, freedom and democracy are under attack all over the world – no more so than here. Rise up now to reclaim your birthright. The con puke party must be destroyed on November 6 if we are ever to be free again.
Enough is enough. VOTE!
petr says
A little perspective will show, readily, that, as bad a human as Brett Kavanaugh appears to be, there have been worse people than he to sit on the court. Roger Taney springs to mind, among others. The difference, however, lies in enfranchisement: When Roger Taney sat on the court only white men had the franchise. So a reasonable case could be made that Taney one of the whitest of white men, thus, maybe, a legitimate representative of the voters. As outraged at the Dred Scott decision as many actual humans were, many less were the voters who disagreed.
But Brett Kavanaugh, and Neil Gorsuch, were appointed by a President who did not win the popular vote and confirmed by a Senate that clearly represents only a minority of American votes, and they were nominated perhaps expressly for the purpose of overturning policies that have strong majority support. And this same very Minority Senate had to perform Constitutional arrogation to confirm Gorsuch and, at the least, ignore outright perjury (as well as a decidedly injudicious temperament) to confirm Kavanaugh.
This is the very definition of illegitimate in a representative democracy.
Nobody has to undermine the legitimacy of the court. That’s already been done. And that’s the actual danger. It’s a condition that can’t continue: the majority cannot be stymied like this without stress and friction.
seascraper says
What it the Democrats primary social policies, abortion, same sex marriage, etc, could not be enacted legislatively nationwide? I have seen analysis which says that is the reason why the court fights are now so partisan, because it has become another legislature, and an ultra-powerful one at that.
tedf says
Okay, what if?
Charley on the MTA says
You lost me on Bork. He was terrible, bad ideology, bad temperament, unprincipled background. A president is not entitled to infinite deference on whom he nominates.
He certainly is not entitled to that when he is a minority-elected President, elected under the sketchiest of circumstances (invited help from a hostile foreign power), with the slenderest possible majority in the Senate; when the candidate has such significant character questions unresolved, from high school (assault) up through adulthood (possession of stolen materials; perjury; a truly dangerous and unhinged performance at confirmation hearings).
There are many questions, as you mention, that are not language slam-dunks. But others are pretty clear. Massachusetts vs. EPA is likely a goner, and that is as clear a case as one can imagine. The VRA, Janus, and I’d argue the ACA are also pretty obvious cases of conservative overreach. Oh, and the big one: Bush vs. Gore.
We did not create this illegitimacy; please do not tell me that I’m somehow responsible for something that’s been forced upon us. We are many years into it; and now the very pretense of fairness has been dropped, because apparently it’s more important to demonstrate one’s partisan bona fides as a qualification for the job. Even before Kavanaugh’s mind-bogglingly inappropriate antics on live TV, his history of partisan loyalty was his selling point. Between your comment and mine being written, Trump was feting Kavanaugh on live TV as his man. This is unprecedented and nauseating. I’m not doing that to the court; Trump and Kavanaugh are doing it themselves.
Don’t put it on me. I reject that 100%.
I’ll end quoting the former Dean of Yale Law School:
tedf says
Just to be clear, I agree with you and Dean Post that Kavanaugh should not have been confirmed. The question is, what do we do now? You’re not responsible for the Republican misdeeds up till now, but we all are responsible for how we respond to them. I think we need to respond in ways that strengthen rather than weaken our institutions. And this isn’t some wishy-washy version of “when they go low, we go high.” It’s motivated by the view that no short-term political or policy goals can justify perhaps irrevocably damaging our basic institutions of government. So I get it when someone says “the Republicans have called the legitimacy of the Court into question.” But I am not on board with saying that we should push for delegitimization. Now, maybe I am overreading you, but others have made that call.
jconway says
When only one side has been consistently acting in defending this principle, it becomes harder and harder to do so. McConnell obviously favors short term political victories for his donors than the long term legitimacy of the court. Restoring that legitimacy, and let us be clear, it lost that legitimacy prior to Kavanaugh during the Garland fiasco and Bush v Gore, will require outside the box measures. Like court packing, like judicial term limits. If we want to restore regular order we have to beat back the people who disturbed it to begin with, and create permanent safeguards to prevent them from doing so again.
tedf says
Agreed that adding justices (you really would have to add two, right?) is worth considering if the Democrats ever retake control of the senate and the White House, though to my mind the impetus would be the Gorsuch mess, not the Kavanaugh mess. Anyway, the move would be entirely legitimate, though of course you’d have to ask some hard questions about what happens next. But the concern, or my concern anyway, is taking steps to delegitimize the court in the public’s view right now.
jconway says
I would argue that Democrats are not delegitimizing the court right now, simply acknowledging that this is what has now happened thanks to McConnell & Co.
Christopher says
Plus Bork got denied a SCOTUS seat the right way – by failing to get a majority to confirm on an up-or-down vote.
hesterprynne says
I agree with tedf that there’s a risk to ourselves arguing that Supreme Court decisions are going to be illegitimate post-Kavanaugh. And I wish I shared his confidence in the inherent stability of Supreme Court jurisprudence.
As I see it, now that the Court has redefined speech as money (Citizens United), it’s starting to take its constitutional “free speech” wrecking ball to past decisions, including the revisiting of long-standing statutory interpretations, which should be most among the most immune to reinterpretation (because the Legislature may amend a statute in light of a court interpretation with which it disagrees). Notable in this category is the 2018 Janus decision, which reversed a 41-year precedent on the proper way to interpret a statute on collective bargaining agency fees.
And now that Kavanaugh is on the Supreme Court and Trump’s lower-court nominees are busy at work, that wrecking ball is going to have more opportunities for destruction. We’ll likely be seeing spurious theories about the “original intent” of the Constitution, after the addition of a Justice who lied under oath to Congress about the original intent of his high school yearbook – see “alumnius (sic) Renate.”
Christopher says
The Court has had ups and downs, the lowest IMO being Dred Scott, but it can come back. I don’t think we should prejudge the legitimacy of specific rulings until they are made and see how the justices actually rule and what arguments they make. It will be hard to take seriously any opinion joined by BK in a sexual assault case, though.
SomervilleTom says
I’m just as concerned about any opinion joined by BK that involves any partisan issue after his wildly inappropriate rage under oath. His attack on “Democrats” and on specific Democratic senators should have immediately taken him out of the running.
I think such rulings are a near certainty given the current political climate and the myriad of legal actions underway against Donald Trump in particular and the GOP in general.
Mr. Kavanaugh needs to be removed.
jconway says
There would be poetic justice in removing Kavanaugh and seating Merrick Garland. I think that action would restore much needed balance to the court. Then we can resume the old way of confirming people on the basis of qualifications and ideological balance.
AmberPaw says
That will matter when Brakeen v. Zinke makes it to the USSCT – and the hard right will ensure it does. They cannot wait to return to wholesale kidnapping and white washing. See my new post.