The Supreme Court’s legitimacy is in tatters. Conservative forces in the country, led by the Republican Party, have completed a judicial coup, decades in the making.
After all these outrages, there will be calls for a renewal of civility, as if the problem is that people said nasty things about one other. But the answer to this power grab cannot be passive acceptance in the name of being polite. The causes and consequences of what just happened must be acknowledged frankly.
The conservative struggle for the court began in the 1960s, but it hit its stride in the Bush v. Gore decision after the 2000 election. Five conservative justices violated the principles they claimed to uphold on states’ rights and the use of equal-protection doctrine to stop a recount of votes in Florida requested by Al Gore, the Democratic nominee. They thus made George W. Bush president.
The pro-Bush justices made abundantly clear that they were grasping at any arguments available to achieve a certain outcome by declaring, “our consideration is limited to the present circumstances.” Translation: Once Bush is in, please forget what we said here.
Bush then appointed two staunch conservatives to the court: John G. Roberts Jr. (one of Bush’s legal foot-soldiers in Florida) as chief justice as well as Samuel A. Alito Jr.
More recently, Senate Republicans kept the late Antonin Scalia’s seat open for more than a year, refusing Merrick Garland, President Barack Obama’s nominee, either a hearing or a vote. Neil M. Gorsuch, a far more conservative jurist, took the seat instead.
Now comes Kavanaugh. In blocking Garland, Republicans said it was urgent to wait until after the 2016 election to let the voters speak. They rushed Kavanaugh through to get him onto the court before the voters could speak in 2018. When power is all that matters, consistency is for suckers.
In the process, the White House turned the FBI investigation of Ford’s claims and Kavanaugh’s (questionable) credibility into a whitewash. Donald McGahn, the White House counsel and Kavanaugh’s leading advocate, told President Trump, as the New York Times put it, that a “wide-ranging inquiry . . . would be potentially disastrous for Judge Kavanaugh’s chances of confirmation.” You wonder what McGahn thought it would find.
There is also this: A generations-long conservative majority on the court has been cemented in place by a political minority. Kavanaugh was named by a president who won 46 percent of the popular vote and confirmed by senators representing 44 percent of the population. When you lack a majority, controlling the branch of government not subject to the voters is vital to working your will.
Democracy is all that opponents of the coup have left. In next month’s elections, the party responsible for this travesty must be punished. The idea that “both parties are equally to blame” is an unadulterated falsehood.
The undemocratic nature of representation in the Senate is unlikely to be remedied anytime soon, so progressives and Democrats need to organize far more effectively in the low-population red states. Critics of the judicial right need to remind voters that conservative judges regularly serve the interests of the wealthy and the powerful, not those of the heartland.
If Democrats take control of the House, they should hold hearings on the administration’s manipulation of the FBI investigation. These could also shed light on the extent to which Kavanaugh misled the Senate.
And there should now be no squeamishness about the urgency of enlarging the Supreme Court if Democrats have the power to do so after the 2020 elections. The current majority on the court was created through illegitimate means. Changing that majority would not constitute politicizing the court because conservatives have already done this without apology.
“Court-packing” makes people uncomfortable for good reason. Were it thrust upon the country suddenly by fiat, many Americans would be uneasy, as were even many Democrats in the 1930s with Franklin D. Roosevelt’s court-enlargement plan. That’s why we need a considered two-year debate over changing the number of justices — it was done seven times during the 19th century — as the only plausible response to the conservative court-packing project that reached fruition on Saturday.
Its foes need to stay angry. But even more, they need to vote, organize and think boldly. Democracy itself is at stake.