The American judiciary is in serious trouble
If Republicans confirm Brett Kavanaugh to the Supreme Court sometime in the coming weeks, despite the troubling sexual misconduct allegations that have surfaced, they will send the United States tumbling further into a wide-ranging and potentially destructive judicial crisis. The GOP's ruthless determination to use procedural gimmicks to entrench their power on state and national courts for a generation will invite (and fully justify) further escalation from Democrats and send the country careening toward an ugly standoff over the legitimacy of the courts themselves.
The GOP's abuse of its power of judicial appointments is so widespread at this point as to feel commonplace, and it goes far beyond the behavior of Vichy Republicans in Congress. Party elites at all levels are acting like bank robbers feverishly stuffing stacks into sacks even as they hear the sirens approaching in the distance.
Last month in West Virginia, the House of Delegates voted to impeach the entire 5-member state Supreme Court. While the impeachments were linked to a scandal, if all justices are removed by the state senate, it will give Republican Gov. Jim Justice the ability to appoint all five members. In Florida, outgoing Republican Gov. Rick Scott is determined to fill the seats of three retiring justices even if the GOP loses the governor's mansion to progressive Democrat Andrew Gillum. Scott's scheme is to use the hours between the end of the judges' terms and the beginning of the new governor's term to jam through a series of hardline replacements. Earlier this year, Pennsylvania Republicans seriously contemplated impeaching members of the state's high court after it ordered new, fair maps drawn for the 2018 congressional elections. In January, Republicans in North Carolina used their gerrymandered state legislative supermajorities to pass an absurd law protecting a single Supreme Court candidate.
What links these hardball ploys together is that they are all technically legal but display an almost unfathomable contempt for the spirit of democracy and fair play. That's because state Republicans are taking their dirty cues from the national party, which spent the last decade waging a similarly constitutional but deeply transgressive war to prevent President Obama from making appointments to the federal judiciary and then, most disruptively, to block the 2016 appointment of Merrick Garland to the Supreme Court. Not content merely with creating dozens of ill-gotten vacancies for their gangster overlord to fill with the nearest zealot, nor with the broad-daylight theft of Garland's seat, Senate Republicans also eliminated the filibuster requirement for Supreme Court appointments so they could push hardliners Neil Gorsuch and now Kavanaugh through on party-line majority votes.
What explains this infuriating behavior, which is characteristic of Republican rule at all levels around the country? These are not the actions of politicians who are confident in the enduring appeal of their party and its platform. They are, instead, desperate maneuvers by an anti-democratic minority party that increasingly and justifiably fears an American electorate that is slowly but decisively turning against it. With the GOP's most reliable voters set to die off en masse over the next 15 years, and what is now the largest living generation consistently leaning toward Democrats by 20 points, Republican elites clearly feel time is running out. The gamble is that these newly installed judges will reliably rule to extend the suzerainty of corporate power over ordinary Americans, gut labor unions, certify voter suppression tactics as legal, and roll back painstaking progress for women and minorities. Playing offensive hardball with the courts is a recognition that the only way to keep lording it over hostile majorities of voters who despise you is to tilt the electoral rules even more sharply in your favor.
The GOP's court strategy is a problem above and beyond the inherent unfairness of an obviously corrupt megalomaniac who lost the popular vote by several million votes getting to install two youngish extremists on the court for the rest of their lives. Free and fair elections are considered to be the backbone of any democracy, but in so many ways, the long-term stability of democratic rule relies on what happens after elections as much as what happens during them. Supporters of the political party or parties that come up short each electoral cycle must be able to feel that the authority wielded over them by the victors is legitimate. Once in power, successful leaders must avoid exploiting their authority to give themselves and their allies unfair advantages in subsequent elections, or using the supposedly apolitical institutions of the bureaucracy to harass opponents, punish critics, or fuse the state with the party.
Legitimacy is a critical concept in the study of politics and society, and the field of political science is heavy with explanations of state and regime failure that rely heavily on the concept. In "Politics as a Vocation," the 19th-century German sociologist Max Weber argued that "If the state is to exist, the dominated must obey the authority claimed by the powers that be." For the state to function, that obedience must usually be freely given and, crucially, regarded as just. For Weber, the innovation of the modern state is its foundation in legal rationality, which eclipsed older forms of legitimacy that relied on hereditary authority or personal charisma. Legal rationality is better able to foster legitimacy because of the "belief in the validity of legal statute and functional 'competence' based on rationally created rules." His ideas were so influential that the entire apparatus of the modern state is often referred to by political scientists as "Weberian."
The Supreme Court as an institution relies heavily on Weberian legitimacy after it issues controversial rulings. For the court's presto magic to work, political elites at multiple levels of government must be willing to implement its rulings, even when they sharply disagree, without coercion from other institutions. If the national government is put in the position of constantly deploying force to carry out the court's edicts, the whole thing would fall apart very quickly. Yet with nearly every recent landmark decision made on a party-line 5-4 vote, it becomes less and less possible for the public to distinguish between SCOTUS as a deliberative body and as an extension of national ideological warfare. The justices are rightly seen not as impartial, deliberative legal interpreters but rather as political agents, whose rulings are mostly detached from legal principles but tied very tightly to partisan ones.
That could actually be fine, so long as the composition of the federal courts is able to more closely track popular preferences and the needs of modern society. Yet recent Republican machinations have put the federal judiciary further and further from these goals. Even prior to the elevation of Gorsuch and Kavanaugh, the Roberts court has intervened again and again to thwart popular majorities on issues like gun control, campaign finance reform, and bankruptcy law, and will now be poised to shatter even more widely-shared national consensuses about abortion rights and marriage equality. As it so often has during the country's history, the Supreme Court is now positioned for a prolonged period of serving as the handmaiden of racist, reactionary forces bent on preserving their privileges at any cost.
This court will also be totally divorced from what Americans have voted for over the past generation. Four of nine justices will soon have been appointed by presidents who first came into office after losing the national popular vote. Two of the five justices who may vote to overturn Roe v. Wade have been accused of sexual misconduct. Eight of the nine members will have been appointed during a 26-year stretch of American history when Democrats have received 30 million more votes than Republicans for the Senate and 35 million more for president. This kind of tension between the public's electoral judgments and the country's judicial outcomes cannot be sustained forever.
If Republican elites wanted to win some short-term battles over voting rights and who gets to rule in Tallahassee and Charleston, they have done spectacularly well, and should probably feel quite smug. But they could hardly have picked a worse time to engage in the kind of naked aggression of the McConnell-Trump years. If the party was led by a serious person who could at least pretend to care about the people he serves, they would probably have a good chance of extending their dominion for another 20 years. But with President Trump at the helm, Republicans may very well turn total power over to Democrats between now and January 2021. And that's when the bill for all of this chicanery will finally come due.
Unless Samuel Alito or Clarence Thomas dies or steps aside, the next Democratic president could spend eight years in an FDR-like battle with the Supreme Court over the progressive policy platform. The Republican Supreme Court majority will be as illegitimate then as it is now, because its authority will no longer be seen as rightly exercised by the majority of Americans who voted to have living constitutionalists appointed and instead watched Republicans forfeit every opportunity to pursue compromise.
What should this Democratic administration do? Watch a Supreme Court staffed by two popular-vote losers and one unindicted co-conspirator destroy the hopes of a progressive majority? No. Sooner or later, Democrats will need to add seats to the Supreme Court, a maneuver which is no less constitutional than holding Garland's seat open. The mere threat of court-packing may trigger Republican acceptance of a compromise that eliminates lifetime tenure on the Supreme Court and gives every president the right to appoint two justices per four-year term. But if Republicans refuse this olive branch, Democrats should be prepared to add enough justices to the Supreme Court to realize the progressive majority that was stolen from them in 2016. Republicans have effectively burned down the Supreme Court. Better to recapture its ruins and restore its legitimacy than to sacrifice both forever.