Thursday, September 27th 2018 was a very bad day for the Supreme Court. And at the epicenter of that day was a 45 minute rant by Judge Brett Kavanaugh, a nominee to the Supreme Court of the United States, furious that he was being questioned about a credible allegation of sexual misconduct simply and solely, he claimed, as the victim of a “political hit”. “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election,” he charged, his voice cracking with rage. It was all about “revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”
Never before has a nominee for the Supreme Court so openly and nakedly aligned himself with one political party and expressed such hatred for the other. Over and over again Kavanaugh, in a diatribe that would have earned him a contempt citation in any court in the land, derided “the left” in general and the Democratic Senators questioning him in particular as the enemy, out to get him. There’s been a lot of talk about Judge Kavanaugh’s “judicial temperament” or lack thereof as evidenced by this performance. A basic requirement of a judicial temperament is a respect for facts and evidence. So I wondered after hearing this extraordinary charge: does he have any evidence to back this up? Does he really believe that the hearing he was so bitterly complaining about was really nothing more than revenge on behalf of the Clintons? That he was being made the scapegoat for the result of the 2016 elections? As somebody who voted for Hilary Clinton and felt she was the victim of a decades long campaign of vilification, and as someone who was plenty angry about the election of Donald Trump, I felt the charge was ridiculous. He was there not because of the 2016 election or the mysteriously omniscient power of the Clintons, but because of who he was and very possibly what he had done.
Aside from the very plausible allegations about his possibly criminal behavior as a teenager, Kavanaugh was sitting in the hot seat not because of revenge on behalf of the Clintons or anger about the election of 2016 but because of a long and lamentable history of politicizing the Supreme Court, a history he was very much a recent addition to. History both in the short term and in the long term. If Judge Kavanaugh really wanted to come to the truth of the matter, the way a judge would, instead of whining about not being allowed to ascend triumphantly to a promised seat on the Supreme Court and cement a conservative majority for the foreseeable future, he could have brought up many things. There was, for example, the strange case of Merrick Garland only two years before. But if we ourselves really want to understand how and why the Supreme Court has come to such a lamentable pass, in danger of losing any shred of credibility as the “non-political” branch of our Constitutional system, we have to go back a lot further than Merrick Garland.
THE POLITICIZATION OF THE SUPREME COURT: THE DISTANT HISTORY
In 1937, at the height of his power and fresh from winning the greatest landslide Presidential election in history, Roosevelt proposed legislation to expand the number of Justices on the Supreme Court. It would have allowed him to appoint an additional Justice to the Court for each Justice over the age of 70 currently on the Court up to a maximum of six. Although it is true that there is nothing in the Constitution requiring there to be exactly nine Justices, Roosevelt’s motive for upending longstanding tradition and trying to “pack” the court was clearly and nakedly political. He was tired of the “Four Horsemen”, as the four rigidly conservative Justices on the Court were termed, voting time after time to strike down New Deal legislation. He was unwilling to wait for death and retirement to change its composition. The result of his attempted gambit was that not only was it denounced by many members of his own party, but he suffered a major reversal in his popularity (what today would be called his “approval rating”) and his party suffered major defeats in the elections of 1938.
What Roosevelt failed to accomplish by executive fiat in 1937 was effectively accomplished by 20 years of political dominance by the Democratic party from 1932-1952. The “Four Horsemen” so despised by Roosevelt were gradually replaced by appointees with a very different outlook such as Robert Jackson, Felix Frankfurter, William O. Douglas, and Hugo Black. The Supreme Court, it seemed, would remain the non-political branch of government, evolving slowly over time to reflect the application of Constitutional law to changing historical circumstances and mores, acting as a kind of flywheel in the American system of government.
With the election of a Republican president in 1952 it appeared that the drift of the Supreme Court away from reflexive support for business against labor would be slowed down. Eisenhower’s first appointment was Earl Warren, the popular Republican governor of California. The world of 1953, when Warren was appointed, was one of institutionalized segregation through a host of Jim Crow state laws that no Supreme Court dared strike down. It was one where individuals arrested by the police were seldom informed that they had any rights and were often interrogated using brutal methods. It was one where criminal defendants did not have a right to be represented by a lawyer; if they were too poor to afford one that was just too bad. All that was about to change. Brown v Board of Education started the process of dismantling institutionalized segregation, overturning the “separate but equal” doctrine that operated on the fictional assumption that the equal part of this flawed equation was in good faith. Over half a century of historical experience provided abundant evidence that it was not, and the court overturned this doctrine. However, the segregationist mindset was deeply embedded in America. Eisenhower, normally thought of as a moderate man, free of prejudice, enraged by the crimes of the Nazis, invited Earl Warren to a White House dinner before the case was heard where he told Warren “These [southern whites] are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.” In spite of this Warren was able to overcome the resistance of a couple of holdouts on the Court and achieved a unanimous 9-0 decision to give Brown v Board of Education tremendous authority as a landmark decision.
The response was outrage amongst a significant segment of the American public. During the deliberations about the decision several of the Justices worried aloud about its enforceability. Their concerns were well founded. There was active and at times violent resistance, resistance which finally forced a reluctant Eisenhower to call out the National Guard to enforce school desegregation. Earl Warren became the most hated man in America in many quarters. This hatred was only increased in the following decade when the Supreme Court handed down the Gideon decision, the Miranda decision, and the Engel decision which ruled that public or sponsored prayer in public schools was unconstitutional. In 1964 I was part of a youth group a bus tour to see for the first time what the United States looked like outside the New York metropolitan area. I remember on the way to Disneyland spotting billboards demanding “Impeach Earl Warren” in huge capital letters. Out of curiosity a few of us Easterners ventured into a John Birch Society headquarters. Below the maps showing the entire world with the exception of the United States in varying hues of red and pink, were books explaining at length and in great detail why it was necessary to get Earl Warren impeached to restore the true American values of the founders. At the time I thought it all a bit of a joke: a sad, bitter little movement at the fringes of American society. How wrong I was.
What I was seeing was the early stages of an aggressive movement to “take back” the Supreme Court. This movement has taken various forms and employed various tactics over the years, but the purpose was always the same: to achieve a Supreme Court that would rule in conformity with the political philosophy of the passionate right. In order to do this and avoid being perceived as nakedly political, the movement to take back the court has over the years employed terms such as “judicial activism”, “activist judges”, “legislating from the bench”, and “strict constructionist”. These terms have done the movement yeoman service in obscuring its true objective, which is inherently political; that is, to achieve a certain outcome and then to construct for it a rationalization, no matter how tendentious.
In spite of its fierceness the movement to “take back” the court seemed to be foundering entering the 1970s. The Brown decision was being grudgingly accepted, at least in most of the country. In any case a private school movement had sprung up to circumvent it. Police departments adjusted to the Miranda decision without the apocalyptic consequences predicted by its opponents. The Gideon decision sparked little public outrage; it concerned indigents, not nice middle class people. The school prayer decision did spark widespread outrage but dealt with too narrow a segment of American life to build a political movement on. All this changed with Roe v Wade. In spite of the fact that it was a 7-2 decision and that one of the dissenters was a Kennedy appointee, it was quickly perceived as a political godsend by the Republican Party, which in 1973 had already successfully fought and won using Nixon’s “Southern strategy”. Within a very short time the Republican Party had mobilized both the Catholic Church and the Evangelical Church to march to its political tune. Up until then the Catholic vote was predominantly Democratic; even more so after Kennedy’s victory in 1960. Evangelicals largely stayed out of politics, or at least were not an identifiable voting bloc; this appeared consistent with a belief in keeping separate what should be rendered to Caesar and what to God. By mobilizing the passionate doctrinal opposition of the Catholic and Evangelical Churches to abortion under all circumstances the Republican Party was able to manufacture in short order two large new voting blocs in its favor: “single issue” opponents of abortion. Never mind that imposing the doctrinal beliefs of a particular religious group or groups on the American body politic is specifically antithetical to the Constitution. It didn’t matter. Republicans had a winning issue. Every national election it collected millions of votes in its favor on the basis of this issue with little blowback. There was no similar conversion to the Democratic side this issue; those taking the “pro-choice” side were for the most part already Democrats; if they weren’t they weren’t single-issue voters either.
From 1973 to the present the Republican Party has stoked outrage at the legalization of abortion. It has fully embraced the doctrine of the religious right that life begins at conception. The corollary to this is that abortion is equivalent to murder, with all the legal consequences that entails. So it is that we have seen a series of increasingly absurd laws whose ostensible purpose is to “protect” the unborn, but whose real purpose is to enshrine into law this religious doctrine. The most recent example of this is a Texas law that health care facilities must provide for the burial or cremation of fetal remains, including not only abortions but also miscarriages. Fortunately in 2018 this law was struck down by a Federal District Court but no doubt will be appealed to the Supreme Court in a coming term. In addition to this legal strategy, the Republican Party has used good old-fashioned propaganda, encouraging comparisons of abortion to the Holocaust, comparisons which I for one find not only ludicrous but offensive.
When Justice Lewis Powell resigned in 1987, at the beginning of Reagan’s second term, Republicans saw their chance to finally take control of the court and shape it to their political objectives. The year before, the moderate conservative Chief Justice Burger resigned. To replace him Reagan promoted the most conservative Justice on the Court, and one of the two Justices who had voted against Roe, William Rehnquist. to Chief Justice. To take Rehnquist’s Associate Justice seat he appointed Anthony Scalia, to the right even of Rehnquist and far more of an ideologue. Powell, appointed by Nixon, had been a swing Justice, voting unpredictably according to his interpretation of how the Constitution applied to the case at hand. In theory that would seem to be what those opposed to “judicial activism” wanted. In practice it was anything but. Reagan chose to appoint Robert Bork, an icon of the ultra-conservatives in the Republican Party, the man who invented “originalism”, the doctrine under which Scalia operated, holding that cases brought in 1987 had to be decided using only the most literal reading, the “original intention” of the writers in the Constitution, who lived in the very different world of 1787. Aside from the fact that this theory was a novelty, outside the mainstream of American jurisprudence, it seemed suspiciously prone to producing a result very much in conformity with the political objectives of the Republican Party. On top of this, during his confirmation hearing Bork expressed views that were clearly outside the mainstream of American law. He had opposed the one man, one vote decision of the Warren Court. He wrote an article opposing the 1964 Civil Rights law forcing businesses to serve people of all races. He opposed the Griswold decision which struck down a Connecticut state law banning contraceptives for married couples, which incidentally first established as a matter of law a Constitutional right to privacy which underpins the Roe decision, and which is now possibly in jeopardy given the success of the current Republican effort to change the direction of the court. Bork’s nomination was defeated 58-42, the largest in history. At a press conference after the defeat, the ranking Republican member of the Judiciary Committee, Strom Thurmond, said ”I would recommend they not send someone as controversial.” In response Reagan very sensibly nominated a far less ideological judge, Anthony Kennedy, the Justice who would be replaced by Brett Kavanaugh should Kavanaugh’s nomination be confirmed.
The reaction by the Republican Party, especially its hard right, to the rejection of Bork was one of great bitterness. Instead of replacing a moderate conservative with a reliable ideologue, they had only replaced one moderate conservative with another. William Safire, a columnist generally aligned with the Republican right coined the verb “Borking” to describe the perceived unfair rejection of a nominee for political reasons. In his tirade to the Senators last Thursday Brett Kavanaugh used this term, claiming that the objections of “several of the Democratic members of this committee” to his nomination was a “Borking”. So little is this term understood or in common use outside of the hard right that I read one transcription of Kavanaugh’s opening speech that read “working” in place of “Borking”. In spite of the partisan bitterness this embodied by this term, the Republicans themselves are hardly without blame for the Robert Bork fiasco. Democrats, who were in the majority, warned Reagan not to nominate him, and that should he do so they would fight it with everything they had. There was good reason for this. Bork had long coveted the position and was promised it by Nixon, who had a soft spot for him as a result of his compliance in the “Saturday Night Massacre” of 1973. Unfortunately for Bork, Nixon was forced to resign before another Supreme Court appointment became available. This alone should have been disqualifying. In addition his nomination was passionately opposed by all civil rights groups, who had not forgotten Bork’s equally impassioned denunciation of the 1964 Civil Rights Act. Benjamin Hooks, the Executive Director of the NAACP stated: “We will fight it all the way—until hell freezes over, and then we’ll skate across on the ice.” In spite of this a Republican triumphalism that was to become an increasing factor in future years carried the day and Bork was nominated by Reagan much to the temporary delight of the Republican hard right.
Bork’s nomination was defeated in Committee 9-5. In spite of this, Bork insisted that his nomination be brought to the full Senate floor, where it was also defeated. In retrospect it is clear that if it was true that Bork’s highly charged political beliefs were responsible for his defeat, it was also true that his degree of open partisanship was highly atypical of judges who had been nominated to the Supreme Court throughout most of its history. However you view it, his nomination was a disaster for the Court, and for the “Advise and Consent” role of the Senate. The ideological battle lines were clearly drawn and it was open warfare. The Republican Party felt it had been cheated from achieving its long-term objective of filling the Court with Justices who could be relied on to rule in accordance with its political goals. It was an avoidable long step down the road of politicizing the Court.
THE POLITICIZATION OF THE SUPREME COURT: RECENT HISTORY
After the appointment of Anthony Scalia the next bite at the apple came in 1990 with the resignation of Justice Brennan, one of the most liberal Justices on the Court. To replace him George H.W. Bush selected a little known but highly respected Republican Judge from New Hampshire, David Souter. As an Associate Justice on the Supreme Court of New Hampshire Souter was noted for his tough sentencing. Souter was on friendly terms with a number of very conservative figures in New Hampshire, and John Sununu, Bush’s chief of staff and former Governor of New Hampshire, pushed for his nomination, assuring hard-right movement conservatives such as Paul Weyrich, co-founder of the Heritage Foundation, the American Legislative Exchange Council (ALEC), and coiner of the term “the Moral Majority”, that Souter would be a “home run” for the right. Most important for Republicans still smarting from the rejection of Bork he had almost nothing in the way of a judicial record on the federal level. He was the perfect “stealth nominee”.
On the surface he certainly seemed ideal nominee to further the long standing goal of “taking back” the Court. Bookish to the point of reclusiveness, Souter owned no computer, no fax machine, no cell phone, no TV, and did not attend movies. He owned a vast library and read extensively. He took notes using a fountain pen on a yellow legal pad. He seemed a man out of an earlier era, maybe even an earlier century; he was described by a friend as “a creature of the seventeenth century.” Although clearly no ideologue his professed judicial approach was a “rational minimalism” that argued that precedent — i.e. earlier court decisions principally — should be overturned only when it was clear that there were demonstrable flaws in logic or naked prejudice. Likewise, he was a strong believer in the conservative shibboleth that judges should not “legislate from the bench”, that the Court should interfere only with the greatest deference in the work of the political branches. He was “a strict constructionist.” In short, Souter seemed the perfect embodiment of the professed judicial ideal of the right: uninfluenced by the changing morals and mores of the times, and an enemy of “judicial activism”. In spite of the opposition of the left led by the NAACP and NOW – Molly Yard, the president of NOW, testified at Souter’s confirmation hearing that Souter would “end freedom for women in this country.” – Souter’s nomination sailed through and he was confirmed by the Democratic-majority full Senate 90-9, all nine “No” votes coming from liberal Democrats.
Souter’s first two years on the Court seemed to bear out Sununu’s prediction of a “home run” for the right. He consistently voted with Scalia. In the spring of 1991 the elderly Thurgood Marshall resigned. In 1954 Marshall had argued for the plaintiff (i.e., in favor of) before the Court in the Brown v Board of Education. An Associate Justice for 23 years he was widely viewed as the keeper of the flame on Constitutional issues arising from civil rights legislation. Politically it would have been difficult to replace him with a white nominee. So H.W. Bush nominated Clarence Thomas, whom he had considered at the time of the Souter nomination and had rejected on the grounds of insufficient judicial experience. To explain his choice Bush put forth the palpable falsehood that Thomas was the finest African-American judicial mind available, now having 16 months on the federal bench under his belt. As far as his judicial philosophy Thomas was strongly influenced by the work of Ayn Rand and Thomas Sowell, both of whom wrote from an extreme libertarian perspective, from the viewpoint that government efforts at social reform are inherently wrong and counter-productive, and that only through individual action can disadvantages of birth be overcome.
Replacing Marshall with Thomas looked like another “home run” for the right. The goal of overturning Roe v Wade, as well as generating a host of decisions friendly to business and hostile to social reform seemed tantalizingly close. And then the Thomas confirmation hearing blew up in a way very similar to the Kavanaugh hearing today. Anita Hill came forward with highly credible allegations of sexual misconduct while she served under Thomas at both the Department of Education and the EEOC. Like Kavanaugh today Thomas angrily denied the allegations, claiming he was a victim of a media circus and a “high tech lynching,” a curious defense for a jurist who consistently argued against any special treatment on the basis of race. Anita Hill was harshly questioned by the Republicans on the Committee led by Arlen Specter, weakly defended by the majority Democrats led by Joe Biden and vilified in the conservative press as a nymphomaniac and a liar (the description of her as “a little bit nutty and a little bit slutty” is from the book The Real Anita Hill by David Brock, then a right wing political operative, which came out the following year). The Judiciary Committee split 7-7, sending Thomas’s nomination to the floor with no recommendation for or against. Thomas was ultimately confirmed 52-48, the smallest margin in over a century. He ultimately became along with Scalia the most reliably conservative Justice. The distance between him and Thurgood Marshall, whom he replaced, could hardly be wider.
With Thomas on the Court it looked like all systems were go for the overturning of Roe in the 1991-1992 court term. And the case of Planned Parenthood v Casey, brought that term to test the Constitutionality of laws enacted by the State of Pennsylvania to make abortion difficult or impossible in many cases, looked promising for fulfilling that goal. Upholding the Pennsylvania laws meant making Roe all but a dead letter. Of the nine justices on the Court, eight were appointed by Republicans, and the only Democratic-appointed justice, Byron White, had, along with Rehnquist, been one of the two dissenters in the original Roe decision. Ken Starr argued on behalf of the Bush administration that Roe was wrongly decided. However trouble was on the way for the Republicans. Sandra Day O’Conner, appointed by Reagan, had little sympathy for the push to revert back to the pre-Roe days of illegal back alley abortions. Two more, Blackmun and Stevens were out; Blackmun because he was the original author of Roe, Stevens because he had voted specifically to uphold Roe in previous decisions. That left Kennedy and Souter along with Rehnquist, White, Scalia, and Thomas to overturn. However Souter unexpectedly sided with O’Conner, Blackmun, and Stevens to strike down the Pennsylvania laws. That still appeared to leave a five vote majority to uphold the restrictive laws. However in the days following the conference between the Justices to decide the case, Kennedy changed his mind and joined with O’Conner and Souter in a plurality decision to make only minor changes in Roe v Wade, and in fact going beyond Roe in formulating a new “undue burden” standard upon any state laws restricting the availability of abortions. In short, it was a stinging defeat for the “pro-life” political movement to again outlaw abortion and return to the days when annually the hundreds of thousands of women with an unwanted pregnancy were faced with choices ranging from dismal to appalling.
With the election of Bill Clinton in 1992 it looked like the hopes of the political movement to take back the court were dashed for the foreseeable future. With the appointment of Ruth Bader Ginsburg to replace Byron White they took a step backwards, and the appointment of Stephan Breyer to replace Blackmun gave the now liberal majority greater longevity. In the late 90s David Souter increasingly sided with this majority. As a result he became probably the most hated man in America in rightwing circles. The cry of “No more Souters” became a watchword for the movement to take back the court. The next Republican president would vet Supreme Court nominees for their political beliefs like never before.
As the 90’s wore on Republicans began to question why Republican-appointed Justices seemed to drift to the left while no Democratic-appointed Justice ever drifted in the opposite direction. Kennedy, O’Conner, Stevens, and most egregiously Souter were cited as prime examples of this. Often the tone of Republicans towards these Justices carried a strong whiff of betrayal. Varying explanations were proposed for the drift. Perhaps the most widely accepted explanation was that the drift reflected movement in public opinion, such as changing attitudes towards homosexuality. Critics from the right however, including Justices Scalia and Thomas, rejected this explanation in favor of something more insidious: as reflective of the leftward march of the intellectual elite, including news reporters, legal commentators such as Jeffrey Toobin, and law school professors. While this explanation is very satisfying to the Republican base, which tends to attribute most of the ills of society to a purported left-wing elite, it is highly implausible given a little consideration. Justice Stevens, probably the most brilliant jurist on the Court he sat on was fiercely independent. A biography of him is titled “John Paul Stevens: an Independent Life.” When asked in 2007 if he still considered himself a Republican, his reply was “”That’s the kind of issue I shouldn’t comment on, either in private or in public.” It’s nothing short of absurd to presume that the deep, complex and nuanced thinker that Stevens was would fall under the influence of the passing intellectual trends of his times. Even less would Souter, a man uniquely divorced from the ephemeral world around him, a man who did not watch TV, go to movies, or read popular magazines. Souter hated Washington DC and its social gatherings; he disdained intellectual fashions. A rival and ignored explanation for the supposed leftward drift of these Republican-appointed Justices is that they didn’t drift left but appeared to do so viewed from an ideological platform drifting further and further right. It’s entirely possible that the Republican centrist of 1976 appeared as the thoroughgoing liberal of 2009 from the viewpoint of movement conservatism. Or maybe it’s simply that Justices such as Stevens, Souter, O’Conner, and Kennedy, not committed to any particular judicial ideology, much less a political one, actually did “call balls and strikes as they seem ‘em” to repeat the favorite formula regularly trotted out at the confirmation hearings of recent Supreme Court nominees.
Increasingly in the 80’s and 90’s and on into the 21st Century the Supreme Court became an important issue in Presidential campaigns. Republican candidates would regularly denounce “activist judges” supposedly “legislating from the bench”, overriding the two political branches. They would promise to appoint “strict constructionists”. The problem is that it was awfully hard to see any daylight between “strict constructionism” and the ideological goals of the Republican party, particularly on hot-button issues such as campaign finance reform, gun control, and abortion. This tendency culminated in the election of 2016, in which Donald Trump made the composition of the Supreme Court a central campaign issue, thus winning over voters of the religious right who might otherwise hesitate to support a candidate caught on tape bragging about the impunity with which he was able to commit sexual assault. What’s clear is that making the composition of the Supreme Court a campaign issue in Presidential elections contributes radically to the further politicization of the Court and threatens its independence from the other branches.
With the election of 2000 the Republicans not only looked to get their chance to take back the court but in fact got to decide the result of the election itself with Republican-appointed Justices. In a highly controversial 5-4 decision the four Justices most identified with movement conservatism, joined by O’Conner, decided to stop the Florida recount and award the election of 2000 to Bush. Aside from the fact that some have argued that both O’Conner and Rehnquist should have recused themselves because both expressed a wish to retire during a Republican administration, the decision seemed at odds with the legal theories long espoused by Scalia, Thomas, and Rehnquist. This led to suspicions that there was a partisan undercurrent to the Bush v Gore decision. Jeffrey Toobin has written that so upset was Souter by what he considered the crudely partisan nature of the decision that he seriously considered leaving the Court, feeling that he could no longer serve with the Justices behind the decision. There is no question that the decision damaged the Court, diminishing further its position in the eyes of the American public as a non-partisan arbiter of Constitutional questions.
The chance to change the direction of the court came in the second term of George W Bush. The elderly Rehnquist had died in 2005 and was replaced by the reliably conservative and much younger John Roberts as the Chief Justice. Although that meant extending the longevity of a conservative Chief Justice, it did not significantly alter the direction of the Court. The moment of truth arrived when the moderate O’Conner announced her retirement the next year. With the cry of “no more Souters” ringing in his ears, Bush chose to replace her with Samuel Alito, a member of the Federalist Society, an organization dedicated to the promotion of ideological conservative judicial theory, notably Originalism, and increasingly the de facto gatekeeper of lawyers aspiring to federal judgeships under Republican administrations. As a federal district judge in Pennsylvania, Alito had gone further than the other judges on that court in the Planned Parenthood vs Casey decision, unlike them ruling a wife must obtain spousal consent from her husband before obtaining an abortion, ignoring the argument that forcing spousal consent could lead to spousal abuse and domestic violence.
Although with Kennedy still on the court the movement did not have the votes to overturn Roe, they did have the votes along with Kennedy to embark on a series of decisions handing Republicans political victories important to the Republican base. One of the first of these was the Heller decision, which, in a radical departure from all previous case law on the Second Amendment, held that the Second Amendment contained an individual right to own any firearm “in common use” in spite the “well-regulated militia” clause. To explain this stunning reversal using originalist theory Scalia evolved a complicated argument that paradoxically relies less on the text of the Second Amendment than on a historical analysis of the “natural right” of self-defense. In a blistering dissent Stevens pointed out this contradiction to Scalia’s purported adherence to the text of the Amendment and the intentions of its writers. He pointed out that nowhere in the text of the Second Amendment is an individual right enunciated, that the phrase “to keep and bear arms” along with the militia preamble clearly points at an application to state militias only, and that Scalia’s decision implied the Framers intended to restrict the regulation of firearms by elected officials, a proposition Stevens found absurd. In any case Scalia’s decision seemed to contradict the stated horror of movement conservatives of “judicial activism” and “legislating from the bench”. This seeming inconsistency bothered movement conservatives not a jot however. They were all too happy to ignore the inconsistency to achieve a political goal coveted by the NRA and its constituency for decades. Given the background of gun control as a major political issue, it was hard to escape the conclusion that the Heller decision was politically tinged.
In 2013 the Court heard Shelby County vs Holder. Shelby County in Alabama had sued Eric Holder, the Attorney General of the United States. It claimed as unconstitutional provisions in the Voting Rights Act (VRA) of 1965, which forced it, along with other counties and states in the United States with a history of racial discrimination in voting rights, to obtain “preclearance” from the federal government before making any changes to their voting laws. The Supreme Court had explicitly upheld preclearance as Constitutional in decisions from 1973, 1980, and 1999. In addition Congress had specifically re-authorized the section of the law under dispute in 2006 for an additional 25 years. In addition two lower federal courts had already ruled on Shelby, holding that both preclearance itself, and the coverage formula dating from 1975 used in its enforcement to determine which counties showed a pattern of discrimination, passed constitutional muster. In spite of all this the Court struck down this key provision of the VRA, ruling 5-4 in an opinion written by Chief Justice Roberts that the “40 year-old facts “ of the coverage formula had “no logical relationship to the present day”. The opinion further ruled that a state or county cannot be subject to preclearance simply because of past discrimination. In effect this rendered the heart of the VRA a dead letter except in the unlikely event that Congress legislates a new coverage formula. In his opinion Roberts conceded that the VRA had been tremendously successful “at redressing racial discrimination and integrating the voting process”. But, somewhat fatuously, Roberts claimed that if the coverage formula had been updated in 2006 when the VRA was renewed, it would not find the “pervasive”, “rampant”, “flagrant” and “widespread” discrimination that Congress observed when the VRA was originally enacted in 1965. In dissent Ruth Bader Ginsburg noted dryly that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Within hours of the decision being handed down Texas and Mississippi officials pledged to enforce recently enacted state Voter ID laws that had not been precleared. Since the ruling a host of other Voter ID laws have been enacted, as well as laws ending practices increasing minority turnout such as same-day registration, early voting, Sunday voting and pre-registration for teens about to turn 18. Three years after the ruling 868 polling places had been closed down, primarily in minority communities. Furthermore an investigation by ProPublica in 2017 revealed that Roberts had used erroneous data in evaluating whether or not patterns of racial discrimination still existed. The data Roberts used lumped Hispanics in with Whites, thereby depressing the apparent White turnout bringing it more in line with the Black turnout, leading to a false conclusion of progress. The real story behind Shelby was its validation into law of the strategic decision by the Republican Party to suppress voter turnout amongst the poor and minorities through aggressive Voter ID laws and rollbacks in accessibility to the polls. The Shelby decision must be viewed in the context of the highly partisan drive by the Republican Party to enhance its political power through voter suppression. In spite of the baroque reasoning of Robert’s opinion it’s difficult to escape the conclusion that the Roberts Court was “legislating from the bench”, overturning legislation enacted by the political branches for what looked like, to the untrained eye, nakedly partisan reasons. It, the Heller decision and other decisions by the Roberts Court have rendered the phrase “judicial activism” as used by Republicans in political campaigns meaningless. Or rather it seemed to mean judicial decisions that ran counter to the political interests of the Republican Party.
Throughout the Obama Administration the atmosphere on Capitol Hill grew ever more bitterly partisan. Exhibit A was Mitch McConnell’s statement two years into the Obama Administration that his overriding goal was to make Obama a one-term President. After the Republicans gained seats in the Senate in 2010 a number of vacant judicial seats remained unfilled because the Republicans put up procedural hurdles. After the 2012 election, in which the Democrats did better, the minority Republicans still continued to use tactics to hold up Obama nominations to the bench, including the traditional “blue slip” rule allowing a single Senator to blackball a nomination of a Judge to a court covering his state. (This rule was quietly dropped in 2017 when the Republicans held the majority and the Presidency, and it was no longer convenient for them). Finally losing patience and in frustration, Harry Reid, the Democratic majority leader, in a move many even on the Democratic side considered unwise at the time, unleashed the “nuclear option” which eliminated the filibuster on judicial nominations except the Supreme Court. This politicized the judicial nominations even further; no longer would a nominee have to attract some bi-partisan support. Instead judicial nominations could be rammed through by the majority on a purely partisan basis. A predictable effect of this was that centrist nominees or nominees tied to no political agenda would become increasingly rare because of their prospects for promotion to higher judicial posts were dim. If one party held both the Presidency and the Senate, why would it not select judges guaranteed to push forward its own political agenda? Although the short-term provocation for Reid’s decision was understandable, in the long term it was another big step down the road to politicizing the Courts.
Worse lay ahead. On Feb 13, 2016 Anthony Scalia unexpectedly died. A month later, on March 16, Obama nominated Merrick Garland to the Supreme Court. Garland was at the time Chief Judge of the U.S. Court of Appeals for the District of Columbia, a powerful post on a court often considered an incubator of Supreme Court nominees. A number of Democrats on the left expressed displeasure with his nomination, arguing that instead of a white male centrist with a law and order reputation, Obama should have nominated a black woman or at least someone less pro-business and further to the left. Many Republicans such as Orrin Hatch had in the recent past expressed admiration for Garland. In 2010 when Obama had a vacancy to fill, Hatch announced that he would help insure Garland’s confirmation on a bi-partisan basis if Obama nominated him, characterizing Garland as a “consensus” candidate. In 1997 Garland had been confirmed to his D.C. Court of Appeals post by the Republican controlled Senate by a vote of 77-23. Garland had more federal judicial experience than any Supreme Court nominee in history and was the oldest Supreme Court nominee since 1971.
None of this really mattered though, because within hours of Scalia’s death Mitch McConnell announced that he would not consider any nomination by Obama, and that the nomination should only be made by next president, a statement contradicted by later statements made by several Republican Senators who declared that should Hillary Clinton be elected, the lame duck session of the Senate would act to confirm Garland on the expectation that a Clinton nominee would be “worse”. After Garland was nominated Republican Senators, acting on McConnell’s orders, refused to even meet with Garland. McConnell’s reasoning that “the American people should have a say in the court’s direction” was clearly specious and without any Constitutional basis, although it fit perfectly with the decades-long Republican strategy of cultivating one-issue “Supreme Court voters”. Although appointments in a President’s lame duck year are rare they were not unprecedented. What was unprecedented was to entirely ignore a Presidential nomination to the Supreme Court, as if no vacancy existed. As the spring and summer of 2016 drifted by, protests of Garland’s treatment mounted and not just from Democrats. Scores of law professors, historians, and political scientists of varying political stripes urged the Senate to at least have a process for Garland as a duly appointed nominee with impeccable qualifications. But wielding the raw power of the Senate majority, McConnell refused to budge. After 273 days of inaction the Garland nomination officially lapsed with the end of the 114th Congress. McConnell was doubly successful in his tactic; denying the seat to a Democratic President, and motivating “Supreme Court voters” to vote Republican in 2016, particularly the one-issue right-to-life constituency Republicans had nurtured over decades, and hungering for the long-awaited triumph of overturning Roe v Wade. That the Republican nominee turned out to be Donald Trump did not matter. What mattered was Trump’s promise to nominate only judges from a pre-vetted public list provided by the Federalist Society. McConnell’s achievement of what he considered the crowning moment of his political career came at the cost of permanently damaging the Supreme Court as an institution trusted for its independence by the American public, and of incidentally damaging the remaining shreds of comity in the Senate as well. It made the claim of the Supreme Court to be the non-political branch of the American system of government appear naïve and foolish. Those nominated to it would be selected above all not for their qualifications or intellect, much less for their independence, but for their loyalty to a political movement. The open proclamation by Trump that if elected he would nominate only judges pre-selected by the Federalist Society stripped away even the fig leaf of judicial independence. Once inaugurated, instead of Merrick Garland Trump selected Neil Gorsuch, notable particularly for his hostility to Church – State separation, and a reliable vote not much different than Scalia in outcome if not in temperament. Although Gorsuch certainly possesses the resume to sit on the Court it is difficult not to view the seat he sits on as “the stolen seat.” When the Democrats attempted to block his nomination using the filibuster rule, which had remained in place for Supreme Court nominations after Reid removed it for lower court judicial nominations, McConnell simply invoked the “nuclear option” for the Supreme Court as well and rammed the nomination through.
Which brings us to the present day, and the Kavanaugh nomination to replace Kennedy. Full disclosure: I believe the allegations of Dr Blasey Ford. I believe them for a number of reasons including but not limited to: her authenticity as a witness and her “100%” certainty that her assailant was Kavanaugh, the differences in motivation: i.e., Dr Blasey Ford had nothing to gain by coming forward with her allegation while Judge Kavanaugh had a lot to lose by not strenuously denying it, the evasions and apparent whoopers in Judge Kavanaugh’s testimony particularly on the subjects of his drinking habits and the meaning of phrases he wrote into his high school yearbook, the corroborating accounts by multiple persons who knew Judge Kavanaugh either in high school or college and observed heavy drinking or sexual misconduct, and the very real possibility that his strenuous denials were fueled by his lack of memory of the particular incident described by Dr Blasey Ford, both because of its insignificance to him at the time, and because of a memory lapse caused by excessive alcohol consumption.
Aside from the question of Judge Kavanaugh’s guilt or innocence however, what I found particularly insufferable was the sense of wounded righteousness coming from both Judge Kavanaugh himself and the Republicans on the Committee. In his opening statement Judge Kavanaugh indignantly accused Chuck Schumer, the Democratic majority leader, of vowing to “oppose me with everything he’s got,” as if that was so very uncalled for and unfair. This and similar comments from Democrats were cited with the kind of outrage usually reserved for accusations of criminal behavior regardless of whether they are false or true. But as I hope the above history has demonstrated, strenuous opposition to his nomination by Democrats should not have come as a surprise to Kavanaugh. Nor should its source have been particularly mysterious. If he had thought about it for just a moment he would have found it very easy to understand. The Supreme Court was no longer the non-partisan, independent body of 100, 50, or even 20 years ago. The President who appointed him had made appointments to the Supreme Court a central issue of his political campaign, had published a list of the only nominees he would consider, and had likely won hundreds of thousands if not millions of votes from one-issue voters because of this. Kavanaugh himself was hardly a non-partisan figure. He had been a key figure in the impeachment of Bill Clinton, pushing so hard to be allowed to interrogate Bill Clinton with a battery of very explicit sexual questions that he had to be restrained by other members of Ken Starr’s staff. As he himself declared in his opening statement, but with a very different and self-justifying meaning in mind, “As we all know in the United States political system of the early 2000s, what goes around comes around.” And although he appeared not to understand it, it had indeed “come around” for him. Given Judge Kavanaugh’s record, both during the Clinton impeachment and during his tenure in the Bush administration, when among other things he was in receipt of information illegally purloined from the computer of Judiciary Committee Democrats, it is not surprising that he was zealously opposed by Democrats, including the Minority Leader. In fact if Schumer had not opposed him with “everything he’s got” he would have been guilty of political malpractice. The very act of blaming only the Democrats for their opposition to him, strangely omitting any reference to his own highly partisan past, or to the treatment accorded Merrick Garland and its influence on 2016 political campaign, a campaign which culminated for him in his own elevation to a Supreme Court seat he was tearfully claiming as rightfully his, only confirmed the worst fears of those very same Democrats: that he is “constitutionally” partisan and incapable of judging things from any side but his own.
While Judge Kavanaugh was blasting the Democrats for their statements opposing his confirmation, a dark money political group, the Judicial Crisis Network, founded in 2004 with the specific purpose of advancing a right-wing legal agenda by running “issue ads” to influence judicial appointments, was busy spending millions of dollars running ads targeting vulnerable Democratic Senators in Indiana, North Dakota, and West Virginia, accusing them of “taking marching orders” from liberals, and pressuring them to vote in favor of his confirmation. Kavanaugh’s tirade against the political opposition to his nomination omitted any mention of this of course. But the fact remains: on his behalf millions of dollars were being spent by such right-wing pressure groups, which existed for the sole purpose of exerting political pressure to pack the judiciary with nominees who could be counted on to advance a right-wing political agenda. Even the name “Judicial Crisis Network”, which is hardly less descriptive of the aims of this dark money advocacy organization than its original name of “Judicial Confirmation Network”, gives the game away. The underlying assumption being that an independent judiciary with no allegiance to a particular right-wing agenda constitutes a “crisis”. Kavanaugh’s performance, with his claim to find the political opposition from Democrats to his confirmation most shocking was at best highly disingenuous; at worst it was thoroughly dishonest. After his unprecedentedly partisan tirade, his confirmation to the Court would be another long step to its total politicization.