The Washington PostDemocracy Dies in Darkness

The Kavanaugh hearings had one big benefit for all Americans

The Supreme Court is fiercely political. Now we see that.

Brett Kavanaugh testifies before the Senate Judiciary Committee on Sept. 27. (AP) (Andrew Harnik/AP)

It’s hard to find anything good to say about the confirmation process that placed Brett M. Kavanaugh on the Supreme Court. For those who fought against the nominee, it was a travesty of a process that ended with a travesty of a result. For those who supported the nominee, it was the right result achieved after a process that soiled everyone involved, starting with the newest justice himself.

But as the smoke clears, even those who opposed Kavanaugh should recognize that the spectacle may have achieved something valuable: The American people should now have a more realistic understanding of the Supreme Court.

Put simply, the battle over Kavanaugh made clear to all that the Supreme Court is a political institution. It always has been, and it always will be.

This reality often gets lost. We’re distracted by alluring mythologies about justices being nothing more than umpires tasked with calling balls and strikes. We’re scared by dire warnings about how the confirmation hearings are “politicizing” the court, a supposedly new development that we are told is the death knell of the court’s legitimacy.

None of this is true, of course. Constitutional interpretation cannot be reduced to the mechanical application of legal rules. It demands judgment. And the task of constitutional judgment necessarily calls upon not only legal acumen and judicial philosophy but also “political” commitments. These commitments are informed by the same factors that mold everyone’s politics, such as one’s life experiences, one’s understanding of where we have been as a nation, and one’s hopes and fears for where we are going as a nation.

Apart from the irreducible politics of constitutional interpretation, the court is necessarily a political institution because of its integral role in the American political system. Its decisions delineate the political rules of the road — from voting rights and campaign finance regulation to congressional and executive power. And the Constitution gives politicians the primary levers of control over the Supreme Court, from defining its size and much of its power to the appointment of new justices and removal of sitting justices. Our constitutional system is built around the assumption that the court has a role in politics and politics has a role in the court.

The Supreme Court can be a valuable political weapon, so it is no surprise that politicians have wielded it in battle dating to America’s earliest days. After losing to Thomas Jefferson at the polls in 1800, President John Adams packed the federal courts with members of his Federalist Party, among them Chief Justice John Marshall. In 1860, Abraham Lincoln campaigned against Chief Justice Roger Taney’s proslavery decision in the Dred Scott case. In 1937, Franklin Roosevelt challenged a court that stood in the way of his New Deal policies. And during his successful 1968 presidential campaign, Richard Nixon lashed out at the “activist” Warren Court for being soft on crime.

American history overflows with examples of politicians “politicizing” the court.

In light of this long history of politicians using the court for political leverage, why has the idea of an apolitical court retained such a strong hold on the American psyche? The justices themselves play a role. Every chance they get, from their confirmation hearings to their retirement statements, they defend the court against accusations that it is a political institution. Regardless of how politicians use the court, they say, we are accountable to the law and only the law. They draw upon the ideal of an apolitical court to protect their professional identity, authority and independence.

Politicians also play a key role in constructing and defending the image of an apolitical Supreme Court. While politicians attack the court to advance their political interests, they also defend the court for the very same reason. When Roosevelt proposed his court-packing plan, for example, his opponents rallied around the court, insisting that only a judiciary free from political pressure could protect the rights of the American people. Every time the court issues a controversial decision, politicians who see that decision as advancing their political agenda will defend the genius of a court that can rise above politics.

That means that at any given time, some groups will have political incentives to insist that the Supreme Court is not political. When people attack others for politicizing the court, what they are defending is not the court against a disease of politics but their own political vision for the court. As long as politicians see political value in the court, the court will be a political institution.

If today’s debates over the court seem different from episodes past, it’s not because politicians have suddenly discovered the political value of the court. It’s because ideological divisions now map so neatly onto party affiliation, making the politics surrounding the court harsher, more polarized and more obvious. As a result, we have fewer defenders of the myth of the apolitical court. (Note that the 2016 presidential election was the first in history in which major party candidates embraced “litmus” tests for Supreme Court nominees.) Its remaining defenders are dismissed as naive, their voices lost in the political din.

So here is the silver lining of the Kavanaugh debacle: Once we push aside the fallacious ideas that the Supreme Court is (or once was) a nonpolitical body, we can have a more accurate and constructive discussion about the role of the court in our constitutional democracy.

A clearer understanding of the court as a political institution allows us to have a more realistic conversation about how we balance judicial independence with political checks on the judiciary. Liberals are now offering up a flurry of proposals to rein in the court, from term limits for justices to plans to “pack” the court by adding more justices when Democrats are again in control of Congress and the presidency. Some are now promoting “departmentalist” theories of constitutional authority — the idea that the executive and legislative branches can and should arrive at their own interpretations of the Constitution, independent of the court.

These proposals may or may not be good ideas. But they should not be categorically dismissed because they drag the court into politics — the court is already there.

A more realistic perspective about the court allows us to squarely face the core of the issue: not whether the court is political (it is), but how we use politics to produce a Supreme Court that serves the interests of the American people. We will not get there by pining for an imaginary court detached and unsullied by the political battles of the day. Politics created the court we now have. And politics is what we have to make it better. Only politics will give us a court that is more protective of the rights of vulnerable groups and willing to stand up against abuses of authority by the other branches of government.

After the Kavanaugh hearings, we are now in a better position to have this urgent conversation.