If you’re anything like me, you’ve been obsessed with the current struggle in the Senate over the confirmation of Brett Kavanaugh to replace the retiring Justice Anthony Kennedy on the US Supreme Court. (In fact, things are moving so swiftly that his nomination may be resolved, one way or another, by the time you read this!)
Kavanaugh represents an opportunity for conservatives to solidify a hold on the Court, with the ultimate goal of overturning the much-hated Roe v Wade, which has kept abortion legal nationwide since 1973. Indeed, it is widely believed that the endgame for American conservatives consists solely in opposition to Roe, and that the Republican Party has been willing to accept any moral compromise and excuse any outrage in the service of achieving the goal of eliminating abortion from the American landscape.
Republican duplicity in this goal includes Senate Majority Leader Mitch McConnell’s nefarious refusal to consider Merrick Garland (Barack Obama’s nominee to replace the late Justice Antonin Scalia on the Court), holding the seat open for an unprecedented 422 days, enough time for the election of Donald Trump, a fool and a dupe willing to nominate whatever name extreme conservatives whisper in his ear. And they’ve been whispering–nay, shouting–for Brett Kavanaugh.
But how the hell did we get to this place? The Supreme Court has always had political implications, but until 30 years ago, the replacement of a retiring or deceased Justice was largely an uncontroversial affair. Now, Senate hearings are witness to weeping and gnashing of teeth, shouting and bitter tirades. Perhaps even more unsettling is the Court’s increasing tendency in recent years to step into the political arena and try to resolve issues that would have been better left to other processes.
To help understand the personalities on the current Court, and the historical backdrop that led to the Court’s current roster, I highly recommend David Kaplan’s new book The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution. In it, Kaplan traces the confirmation processes of all nine current Justices, and looks at the most influential rulings in recent years (including Bush v Gore, Citizens United and Obergefell v Hodges).
While Kaplan devotes time to the increasing insistence by both the Left and the Right for presidents to nominate ideologues (people say they want Justices who will correctly interpret the Constitution, but let’s face it, what they really want is Justices who will rule based on political desires).
But what really keeps Kaplan up at night is the more-and-more frequent inclination of the Court to step in and decide things before, in his view, the regular legislative or electoral processes have had a chance to resolve them. Kaplan argues that Court rulings can be seen as activist, elitist, and overbearing; whereas outcomes arrived at (albeit belatedly) due to legislative processes have more democratic and societal legitimacy. It’s a compelling idea. Had the Court, for example, stayed out of Bush v Gore and allowed the election to go to the House of Representatives (as prescribed by the Constitution), perhaps fewer people who complain that Bush was “selected” by five robed judges. Perhaps a delayed recount would have found enough votes to put Al Gore over the top. Who knows? On the flip side, it’s hard to imagine that religious conservatives would be less rabid about abortion if the Court had demurred in Roe v Wade and allowed the status of state-by-state abortion to become a patchwork of experimentation, with some states outlawing it outright, and others even providing taxpayer dollars to provide abortion on demand to lower income women.
In any event, the danger we face in 2018 is that the Court is becoming more politicized, both internally and externally, with every open seat viewed as an existential crisis by all sides, and with the Court becoming increasingly willing to tinker where previously it feared to tread. What used to be a brake on the republic’s worst tendencies might become a chamber of elites who rule by fiat, with less and less concern about the “technicalities” of the Constitution. Indeed, the Court might well become our government’s “most dangerous branch.”