As the cancer of hyper-partisanship continues to spread through the U.S. polity, the chaos of Brett Kavanaugh’s ascendance has inspired some thoughtful perspectives about the Supreme Court’s legitimacy. The question is wide open: The Court, always aware of its counter-majoritarian role, has consistently developed prudential doctrines to keep its own authority in check. There are very good reasons to keep judges at a distance from popular opinion, but what are the limits to this separation?
Constitutional scholar Garrett Epps lamented the death of the independent Supreme Court that, even growing up in a white Southern community in the fraught aftermath of Brown v. Board of Education, he was taught to revere. Recalling a bygone era in which policy positions didn’t flow automatically from party affiliation, he traces the Court’s relatively recent transformation into the ideological battleground it is today, putting most of the blame on Republicans.
That Court is gone forever. We will spend at least the rest of my lifetime fighting over its rotting corpse. No prating about civility can change that fact. The fight is upon us now, and the party that shirks it will be destroyed.
With the wounds of the confirmation still raw, his conclusion that the high court is irreparably damaged is tempting. As Benjamin Wittes – an initial Kavanaugh supporter – asked not long after the judge’s testimony on Dr. Christine Blasey Ford’s allegations:
Can anyone seriously entertain the notion that a reasonable Democrat, or a reasonable liberal of any kind, would, after that performance, consider him a fair arbiter in, say, a case about partisan gerrymandering, voter identification, or anything else with a strong partisan valence?
But David French counters that what matters is the Court’s authority to decide what the law is, which is not in jeopardy as long as federal and state governments continue to treat its decisions as binding:
For generations, American conservatives and conservative American governments have complied with Supreme Court rulings they believed — with very good reason — to be legally absurd and morally monstrous. The fabrication of a right to abortion is one of the most illegitimate governmental actions in American history. But it was a decision backed by the authority of the Court, an authority buttressed by the power of the federal state.
The Epps and French historical lenses have a blind spot in common: A failure to acknowledge how certain episodes in the Court’s history have been viewed by the losing side as unforgivable, in a way that, as it turns out, spans generations. Epps barely mentions Roe v. Wade as a catalyst for Republicans’ singular focus on the judiciary, instead recalling the confirmation of Clarence Thomas and the Bush v. Gore decision as the first major turning points along a dangerous path toward partisanship. For his part, French glosses the abortion issue by saying conservative governments “complied” with Roe despite finding it monstrous; he doesn’t mention the open rejection of the Court’s authority throughout the South, post-Brown.
French has a good point that the country has changed since President Andrew Jackson famously observed that the Court doesn’t enforce laws. With the administrative state’s explosion in modern times, SCOTUS decisions increasingly relate to narrow or arcane ambiguities in federal statutes or regulations. French is probably right that this type of caseload provides too much institutional inertia for the Court to lose legitimacy in any practical way, at least in the near future.
Still, his argument rings hollow in suggesting that power, not legitimacy, is all that really counts. One can find a particular line of jurisprudence to be deeply immoral and still revere the judiciary and its underpinnings. But what if a majority of citizens sees rights they view as fundamental denied over and over again by five ideologically-motivated justices, held in place by an increasingly unrepresentative Senate? The rule of law isn’t an end in itself; it’s a means to promote a well-functioning society. At some point, deeper issues of effective and moral governance come into play.
Don’t write the eulogy yet, Cass Sunstein advises pragmatically:
Chief Justice Roberts has shown a keen interest in narrow, humble rulings, able to unify judges who disagree on the deepest questions. Now in particular, the chief justice has both an opportunity and an obligation to ensure incremental movements in the law — to increase the likelihood that in a period of profound political division and distrust, the court is not speaking for a political party.