The partisan hackery of the Supreme Court
The nakedly political truth about the Supreme Court is now beyond dispute
The mask has finally slipped, and the Supreme Court has once and for all been revealed as nothing but a partisan political machine. There is no better evidence than Brett Kavanaugh's confirmation to the court, decided by a 50-48 vote on Saturday.
This is a serious blow to the fortunes of many Americans — but particularly women. The Supreme Court is now all but assured a conservative majority for many years to come, and Kavanaugh and Co. are highly likely to continue the current trend in conservative jurisprudence of allowing any restriction on abortion that is not a straight-up ban.
If there's a silver lining to be found, it's that Kavanaugh's elevation to the court, in spite of multiple allegations of sexual misconduct, and a demonstrable pattern of lying under oath, may finally destroy the Supreme Court's last vestiges of nonpartisan legitimacy. Even setting aside the pile of assault allegations, nominating an enraged right-wing extremist — which is exactly what Kavanaugh revealed himself to be in his hearing on Sept. 27 — makes the conservative game on the courts clear. They want to abuse the power of judicial review to strike down liberal laws and enshrine conservative ones as inherently constitutional. The sooner liberals grasp this reality, the better.
Let's just consider the past couple decades of Supreme Court jurisprudence. First with Bush v. Gore, they installed their preferred partisan candidate in the presidency, with logic so twisted the decision itself said it should not be cited as precedent. Then with Citizens United v. FEC, they allowed near-unlimited corporate election spending, unleashing a flood tide of dark money propaganda that is drowning American democracy. Then in NFIB v. Sebelius, they blew a giant hole in the ObamaCare Medicaid expansion, by dusting off an ancient theory that Congress isn't allowed to coerce states into expanding welfare by threatening to withhold other subsidies. Then in Shelby County v. Holder, they gutted the Voting Rights Act, in a decision that did not even bother to cite the Constitution at all.
Remarkably, all this has not permanently dented the Supreme Court's reputation among liberals, which (as with Republicans) tends to follow partisan trends. Indeed, with the fiat legalization of gay marriage — an excellent and long-overdue development, to be sure — the court's approval among Democrats spiked to 78 percent. It has since fallen sharply, but only about to levels of the George W. Bush years. As Sean McElwee demonstrates, both liberals and conservatives have long overestimated how liberal the court is.
Part of this reputation is no doubt carried over from the Warren court, and its sterling civil rights record. But as Ian Millhiser's excellent history of the Supreme Court shows, aside from that brief period, the court has been a virtually uninterrupted defender of economic privilege and white supremacy. This reached its apex in the Gilded Age, in which American democracy was virtually dissolved into a naked tyranny of business. Richard White's history of this period details several comically hackneyed Supreme Court decisions on behalf of the capitalist class — giving the president the power to protect commerce from labor disputes on the basis of no law whatsoever, or granting legal personhood to corporations in Santa Clara v. Southern Pacific "without discussion or argument" or even detailing what that would mean in practice.
This shouldn't be surprising. Top-shelf lawyers are usually wealthy and lean conservative. And one thing that sort of judicial tyranny means is hideous economic inequality, which provides massive pools of wealth that reactionary business titans can use to train up partisan hack judges who will gin up goofy arguments for whatever their paymasters demand. That is the precise function of the Federalist Society in general and the record of Brett Kavanaugh's jurisprudence in particular.
But despite judicial review being enshrined as a core American legal principle by so-called "originalists," the concept does not appear anywhere in the Constitution. Chief Justice John Marshall just baldly asserted the power in Marbury v. Madison. None other than Thomas Jefferson was outraged by this development, writing in an 1820 letter that it was "a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps." Smart guy!
Indeed, other nations have sharply limited judicial review, and function just fine. Denmark's courts, for instance, have done it just once. Other countries like Norway do it a bit more, to be fair. But no rich democracies have the characteristic American tendency of every major law that is passed having to run a decades-long gauntlet of tendentious lawsuits attempting to get through judicial fiat what could not be gotten through the legislature.
So if Democrats win Congress and the presidency in 2020, they should absolutely expect everything they do to be struck down based on Kafkaesque up-is-down gobbledygook. And in that case, they should view the Supreme Court as what it is: an even more anachronistic and less democratic House of Lords, a sort of disguised legislative body (made up of people with little policymaking expertise) hiding behind a legal facade. Therefore, democratic action to remove that obstacle — impeaching Kavanaugh, adding more justices to the Supreme Court, reorganizing the entire federal court system, or passing a law overturning Marbury v. Madison — would be entirely legitimate.
Republicans may have gotten their seething partisan stooge on the highest court in the land. But that doesn't mean Democrats have to respect him.