Liberals are torn about the nomination of U.S. Appeals Court Judge Brett Kavanaugh to the Supreme Court: Writing for Politico, lawyer Lisa Blatt, a Supreme Court practitioner who calls herself “a liberal Democrat and feminist,” says Kavanaugh meets her standard as someone who is “unquestionably well-qualified, brilliant, has integrity and is within the mainstream of legal thought.” But Slate’s Jordan Weissman, in a piece titled “The Liberal Case for Kavanaugh Is Complete Crap,” concludes that “there’s no reason for Democrats to do anything but protest and make clear that we are witnessing the creation of an arch-conservative court that will likely hamper progressive causes for years to come.”
Senate Minority Leader Charles Schumer (D-N.Y.) vowed to oppose the nomination “with everything I have,” even as pivotal members of the majority such as Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) have indicated they’ll back the nominee. One side sees Kavanaugh as the best liberals can expect when the GOP controls the White House and the Senate. The other sees a crisis, with abortion rights and same-sex-marriage rights on the line — and believes the judicial appointment process is so broken that there’s no reason to expect Republicans to play fair in the future, even if Democrats do so now.
Both sides miss the point. President Trump’s election and his move to fill the federal bench with his picks should show liberals once and for all that they should emphasize rule by the people, and their elected representatives, after decades of vying to enshrine their priorities through judges. If liberals focus on winning the political argument, not confirmation battles, laws and programs they favor will be less vulnerable to changes in the courts, and they’ll do the country the service of starting to put the Supreme Court back in its proper place.
In the 1930s, liberals thought they had learned that judges — especially on the Supreme Court — are best envisioned as servants of the people and should operate with restraint, as adjuncts to democratic action, not drivers of it. When judicial fiat blocked New Deal programs, the wisest justices called for giving up their own power. As Justice Harlan Stone explained, when circumstances call for “removal of unwise laws from the statute books, appeal lies not to the courts, but to the ballot and to the processes of democratic government.” But that insight did not go far enough, because it left the heavy weaponry of judicial invalidation of statutes in place and made restraint optional. As it became increasingly difficult in successive decades for liberal causes to be advanced via the legislative process, liberals looked more frequently to the courts to advance their agenda. It was easier, after all, to convince five of nine justices that the law required liberal political outcomes than to consolidate a consensus with a broad majority of the electorate.
In West Virginia State Board of Education v. Barnette, in which the Court held, in 1943, that a local law requiring a salute and pledge to the American flag was unconstitutional, Justice Felix Frankfurter cautioned, in advance, against the trend of relying on the judiciary. As he noted in his dissent, “The reason why, from the beginning, even the narrow judicial authority to nullify legislation has been viewed with a jealous eye is that it serves to prevent the full play of the democratic process.” Only when democratic majorities had done something wholly irrational should unelected judges step in, he concluded. His warning went unheeded, and liberals began a cycle of transferring choice from the people to the court.
After the 1940s, liberal projects that might have been debated solely in the legislative arena were slowly steered toward predominantly judicial campaigns. Some argue that without the 1954 decision in Brown v. Board of Education, which overturned the doctrine of separate but equal, Congress might not have come around to enacting the Civil Rights Act of 1964 or the Voting Rights Act of 1965. But when judges began trying to engineer racial integration on the district or regional level, they failed badly before going on to impose strict limits on what the Constitution requires. In the crisis that busing unleashed, the Supreme Court itself shut down the serious experiment in justice in schooling it had kicked off, in Milliken v. Bradley and other cases; our own age of widespread de facto segregation of schools has been the outrageous result.
Attempts to advance women’s rights from the bench — most notably the abortion rights decision in Roe v. Wade — have stoked enormous conservative backlash. (Liberals correctly fear that the right to privacy extended in Roe could be reexamined by a conservative majority that includes a Justice Kavanaugh.) Retiring Justice Anthony M. Kennedy, a Republican appointee who wound up becoming the swing vote in several pivotal cases, saved popular majorities across the country the trouble of establishing the right to same-sex marriage with his holding in Obergefell v. Hodges, but that, too, may soon prove temporary.
Given the liberal turn to the courts as an alternative to the more recalcitrant body politic, it was predictable that conservatives would angle for their own version of rule by judges, even as they made Frankfurter’s rhetoric of restraint their own, decrying “activist” liberal judges while turning a blind eye as conservative judges tried to undermine liberal legislation. But liberals still have not learned the right lesson from their experience.
For two generations, liberals have played defense in the Supreme Court and frequently lost. Abortion rights have slowly been undermined, while business interests have seen their agenda entrenched, including the transformation of the First Amendment, once sacred to liberals, into a scalpel to whittle anti-discrimination law and pare down the regulatory state. A good example is last term’s Janus v. AFSCME, which ruled that the long-standing practice of forcing public employees to pay union dues violates free speech.
Further, even justices on the liberal side of the spectrum now mostly offer minor obstructions to the court’s rightward tilt. As for conservatives, they sometimes blink in executing their counterrevolutionary strategy — Chief Justice John Roberts’s choice to save the Affordable Care Act is the best example — but have over time moved the country to the right, all the while claiming that they are just umpires calling balls and strikes, rather than making political choices in the name of the people. Liberals’ strategy, meanwhile, of treating the Supreme Court as politics by other means has yielded gains, but they’re either tenuous or gone.
The fact that the existence of abortion, same-sex marriage and other rights might turn on Kavanaugh’s appointment shouldn’t mean liberal surrender, nor should it prompt liberals to go all in trying to block his nomination — focusing on the makeup of the court and what ideological leanings the justices hold, rather than on restraining the unchecked power they’ve been imbued with (or grabbed), is a losing proposition. It illustrates not merely the limits of achieving progress in the courts when you haven’t won enough elections to be able to turn your policy priorities into law, but also how weak last-ditch judicial “resistance” is when the people elect politicians from the other side of the aisle. (Ironically, this strategy has gone global even as it has proved flimsy at home: In more than one Eastern European country, judges have failed as the bulwark of progressive values, even before authoritarians began replacing them when liberals failed to win at the ballot box.)
Instead of digging in over the Kavanaugh nomination, the proper course for liberals is to abandon rule through judges and to underscore the undemocratic nature of a process that allows a minority to choose a president. If the judiciary is just politics by other means — and it is — then Trump’s election forces liberals to grapple with the reality that the future of their agenda, and the country, hinges on popular support, not winning battles for judicial control.
In his dissent in Obergefell, Justice Samuel Alito complained that “decades of attempts to restrain this Court’s abuse of its authority have failed” and that “preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means.” Both liberals and conservatives are to blame, but, increasingly, liberals are on the losing end.
In the long run, our democracy, and liberals in particular, must shift toward denying the judicial branch a constitutional fiat. Democracy requires judges on both sides of our political divide to be relegated to the margins of national life, rather than have their selection remain the biggest reason elections matter. If judges continue to be allowed to exercise constitutional review, their disagreement ought to transfer the matter to Congress, as the most democratic branch, to decide on what the people want the Constitution to mean. Such innovations would leave no alternative to liberals (or to conservatives) than to convince Americans that theirs is the right course — not to endlessly game the judicial nominations process to implement and maintain their political priorities.
How the Senate votes on Kavanaugh won’t change the political reality for liberals. If they want to preserve the gains of the past and make future gains on critical issues, they should put all their efforts into fighting, vote by vote, for the soul of the country. Compared with this task, trying to derail his nomination is a sideshow.