The likely confirmation of Brett Kavanaugh as a justice of the Supreme Court is a terrible setback to many progressives constituencies, including advocates for women’s rights, victims’ rights, voting rights, LGBTQ rights, and economic and environmental justice.
But don’t confuse a profound political setback with an actual legitimacy crisis for the Court itself. In fact, the Court has survived worse in the past and will survive Justice Kavanaugh too.
Let me hasten to note that none of this is to minimize the profound unfitness of Judge Kavanaugh to sit on the highest court in the land. He was hand-picked by a secretive group of religious extremists, nominated by a president under investigation, and protected by cronies who withheld crucial documents from the public. In his unhinged tantrum of a statement last week, Kavanaugh indulged in far-right conspiracy theories and revealed himself to be partisan and biased in the extreme.
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And Kavanaugh has lied under oath about so many things during his confirmation process, it is difficult to keep track: his youthful drinking habits (crucial pieces of evidence in evaluating the sexual assault allegations against him); his roles in past confirmation processes (involving the receipt of obviously stolen information and the nomination of a controversial extremist); his role in controversial Bush-era policies including warrantless wiretaps, the firing of attorneys general, and torture; and his past statements about Roe v. Wade.
Dr. Christine Blasey Ford’s testimony is even more credible than it was given what we now know about some of those lies, from terms like “boofing” and “Devil’s triangle” to past classmates’ statements about Kavanaugh’s binge-drinking. Kavanaugh may not remember assaulting Ford, but according to his friends they all were often intoxicated to the point of blacking out and often bragged about their sexual escapades. You don’t have to be a #MeToo activist to see how the story hangs together.
Indeed, it is hard to imagine what survivors of sexual assault are likely to feel when their rights to their own bodies are adjudicated by a man like Brett Kavanaugh, who has repeatedly said that they ought to be taken away.
All this, and much more, could be said about Kavanaugh’s character and fitness. The dire predictions about the coming revolution in American constitutional law are entirely justified.
But the Supreme Court is bigger than this and it will survive.
First, it has survived bad justices in the past. For liberals, that means Justice Clarence Thomas, who ascended to power in the midst of an even more outrageous spectacle of male privilege, and who, unlike Kavanaugh, has earned a reputation as a fringe justice with bizarre ideas and little regard for amity and collegiality. For conservatives, the “bad justices” might include Chief Justice Earl Warren, who led the expansion of the Court’s constitutional jurisprudence beyond the written text of the constitution, and who most scholars concede was not the most reflective of jurists.
But there are other, lesser-known names which could easily be added to the list. Justice Roger Taney wrote the Dred Scott decision that upheld slavery, so unnecessarily broadly that he single-handedly can be blamed for the outbreak of the Civil War: he specifically held, without having to do so, that no people of African ancestry could ever be considered “citizens” or even “people of the United States.”
Not to be outdone, Justice Henry Billings Brown, who wrote Plessy v. Ferguson, which upheld segregation, opined that “if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”
Brown’s contemporary, Justice Stephen Johnson Field, was a Confederate sympathizer who, while a sitting Supreme Court Justice, ran for president in 1880 as “the proper candidate of the party whose life-giving principle is that of local self-government.”
Justice James Clark McReynolds, for example, was known to be a lazy, nasty son of a bitch who was abusive to his staff and rarely read briefs in pending cases. He called FDR “that crippled son-of-a-bitch... in the White House” and refused to be photographed next to Justice Louis Brandeis because Brandeis was Jewish. (He also forbade his staff to be in touch with the clerks for Justice Benjamin Cardozo, also Jewish.)
And then there are the partisan hacks. Consider Justice Samuel Chase, who was impeached in 1804 for espousing explicit pro-Federalist, anti-Jeffersonian partisanship from the bench. And sitting Justice Samuel Alito, who addressed the Federalist Society and openly bemoaned “our” loss of the 2012 presidential election.
The Supreme Court has endured all of these justices. It has survived terrible decisions like Dred Scott and Korematsu, upholding the internment of Japanese-American citizens, and—depending on your ideological point of view—Citizens United and Roe v. Wade. It has been through far worse than the present moment, failing as often as it succeeds.
Really, the problem is the word “legitimacy” itself. Often, liberals and conservatives alike use the term simply to refer to political consequences they don’t like. To conservatives, Roe is illegitimate because it created constitutional rights out of thin air. To liberals, Bush v. Gore is illegitimate because the conservative majority shamelessly junked its own principles to install a Republican present. But that’s a matter of perspective—not legitimacy.
Remember that around 30 to 40 percent of the country approves of Judge Kavanaugh, thinks he is a good man unjustly accused, and wants to see him on the Supreme Court. Of course, I totally disagree with those propositions, but my disagreement does not render his appointment “illegitimate.”
What would truly undermine the legitimacy of the Supreme Court? President Donald Trump (taking a cue from Presidents Jefferson and Jackson) baldly defying a Supreme Court decision. Open revolt against the Court from governors (as happened after during desegregation), or the military, or other judges. Sitting justices transgressing judicial codes of conduct regarding partisanship, or criminal activity, or abusive behavior, and remaining in their seats. The system itself breaking down.
Conceivably, the Court’s fundamental legitimacy could be undermined by decisions that flaunt the standards of judicial review—although it’s unclear how bad such decisions would have to be, given that even Dred Scott, Korematsu, and Trump v. Hawaii (upholding the ‘travel ban’ against majority-Muslim countries) were neither causes for universal condemnation at the time nor severe threats to the Court’s ongoing legitimacy.
Indeed, popular conceptions of the Court’s “legitimacy” are largely fantasies. As Ian Millhiser wrote in Injustices: The Supreme Court’s History of Comforting the Comforted and Afflicting the Afflicted, the Court has gotten it “wrong” from a progressive point of view at least as often as it’s gotten it “right”: Jim Crow, the invention and protection of corporate rights, and 150 years of trampling on women’s rights and dignity. And from a conservative point of view, Justice Kavanaugh’s ascension will actually mark the end of a long period of “illegitimacy,” as the Court will now turn back the clock on the rights of women, LGBT people, and African Americans.
Finally, progressives should be careful what they wish for. To the extent the Court’s legitimacy is maintained by popular assent, predictions of illegitimacy can become self-fulfilling prophecies. And this moment, under the reign of a president who clearly knows nothing and wants to know nothing about fundamental principles of the rule of law, reason, truth, democracy, and decency, is not the time to knock down the democratic institutions that imperfectly resist him. That includes the free press, and it includes the Supreme Court.
Justice Kavanaugh will be a devastating blow to the conception of the Supreme Court that liberals have come to believe in. But that belief was always naïve, and the Court will remain legitimate even if liberals don’t like its decisions. That is a profoundly good thing.
