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Preserving The Legitimacy Of The Supreme Court Must Outweigh Partisan Anger

Conservatives lived with what they saw as a left-leaning, activist Supreme Court for decades without undertaking serious efforts to undermine the institution. But while the American Left rightly decries the various attacks on governmental institutions in the Age of Trump, their anger at the confirmation of Brett Kavanaugh is leading them to do precisely that which they say endangers the Republic

I spend a lot of time criticizing the American news media, and rightly so since there is a lot to criticize in this so-called renaissance of print journalism in the Age of Trump. I often single out the New York Times for particular criticism — their claim to run a scrupulously impartial and ideologically neutral newsroom is risible when their opinion pages are stacked 10–1 with not just left-wing progressives, but the kind who have drunk deep from the well of social justice and are now utterly high on the most poisonous distillation of identity politics dogma.

But I also feel compelled to give credit where credit is due. While the New York Times and other prestige media outlets may devote large portions of their time and resources to misrepresenting conservatives and stealthily promoting leftist agendas, today their Opinion email bulletin featured a progressive Op-Ed writer who actually sought to lay out the conservative perspective in good faith for the benefit and enlightenment of Times readers, rather than misrepresenting the conservative perspective to generate cheap outrage.

Addressing the ongoing rancor generated by the nomination and confirmation of Justice Brett Kavanaugh to the Supreme Court, Op-Ed columnist David Leonhardt clearly set out his own liberal position, but then laid out the opposing view in a way which did not openly invite ridicule or snap moral judgment.

Leonhardt begins:

In this polarized era, most of us don’t spend a lot of time genuinely trying to see a political issue the way that the other side does. And it’s often worth doing so. Let me give you an example.

He then goes on to lay out his view that the court is supposedly dominated by an “extremely conservative and partisan majority” sufficient to justify Democrats looking at potentially extreme ways to curb the court’s power.

But then Leonhardt says this:

But here, roughly, is how some conservatives think about the Supreme Court:
In the mid-20th century, a liberal court regularly overruled the popular will or blocked the democratic process. It happened most famously on abortion, but also on school prayer and other subjects. And even though Republicans won the White House in five out of six presidential elections starting in 1968, the court remained left of center, partly because a few supposedly conservative justices didn’t turn out to be conservative.
Yes, the current court is more conservative than the country, these conservatives might say. But we know how you liberals feel right now. Don’t go undermining an entire institution of government just because you have some complaints about it.

The Left does not like to be told of its glaring faults and hypocrisies, particularly by one of their own, so we will no doubt soon see what happens to the career trajectory of David Leonhardt. But laid out here, with no attempt at distortion, is the basic thought process behind most conservatives’ attitude toward the Supreme Court.

To be clear, I personally would not have nominated Brett Kavanaugh to the court over concerns about his views of executive power, and I would not have confirmed him after his performance in the confirmation hearings (yes, it’s natural to be angry at what you see as false accusations, but going on a conspiratorial rant about the Clintons is the antithesis of the impartiality which should be shown by a Justice of the Supreme Court, particularly one whose background was in the Republican presidential administration of George W. Bush). There are other judges with similar judicial philosophies who would have been equally good for conservatives from both a constitutional perspective and the short-term political perspective of the nomination process (cough, Amy Coney Barrett).

But while I would much rather have seen a different justice confirmed to the ninth seat on the Supreme Court, at this point I am more concerned about the hypocrisy of those on the Left who rend their garments about the damage which President Trump is doing to vital American institutions, while also actively seeking to undermine public faith in the court and even enthusiastically contemplating the idea of stacking the court to restore it’s leftward tilt, should they acquire sufficiently strong control of Congress after the midterms.

The dangers posed by President Trump’s erratic, ego-driven leadership are very real, and the precipitous decline in public faith in key institutions of government is a corrosive acid eating away at the American democracy. But those entirely valid fears are recast as cynical partisan pandering when their chief expounders are also doing their damnedest to destroy trust in institutions after having suffered a setback on the Supreme Court. And people are less likely to take the warnings seriously as a result.

Worse still, the Democrats’ pain threshold is apparently so low that they could not tolerate a potential originalist/textualist (or more cynically, rightward) shift on the court for even a week before they started openly agitating to undermine the institution. Say what you want about the Republicans, and there is much to say — particularly their disgraceful refusal to even consider Merrick Garland, President Obama’s eminently qualified Supreme Court nominee — but conservatives watched as the Burger, Rehnquist and Roberts courts handed down many decisions which they regarded as unconstitutional. Decisions which decisively reshaped the fabric of American life. And while nobody would say that Republicans took defeat gracefully or played the part of happy warriors, at least they did not try to stack the court or mount targeted efforts to delegitimize the institution altogether.

One can disagree with the originalist and textualist judicial philosophy which may now come to more prominence in the Supreme Court’s deliberations, but it is a valid and serious worldview worthy of respect, certainly no less so than the “living constitution” alternative. The answer to political setback is not to take one’s toys and go home in a temper — it is to seek to persuade voters that the progressive alternative is better such that Democratic senators and presidents are elected who can nominate like-minded individuals. The answer is not to falsely claim that theirs is a pure and neutral interpretation of the constitution while the conservative view alone is partisan and dangerous.

Congress already has a rock-bottom approval rating, with hardly anyone respecting the legislative branch of government. The divisiveness of the Donald Trump era has seen one group hold out the present head of the executive branch to be worshipful and almost divinely given while the other group thinks he is Literally Hitler. That leaves only one branch of government held in significant public esteem — the judiciary, led by the Supreme Court.

Is undermining remaining public trust in the final branch of government and sawing the third and final leg off America’s governmental tripod the responsible thing to do right now? Is it even the most politically lucrative thing to do in the short and medium term, given how the Kavanaugh saga has energized the Republican base and put a handful of one competitive seats further out of the reach of Democrats?

My opinions on how best to move forward are currently in flux, but I am attracted by propositions that the Supreme Court should no longer be populated with the same nine lifetime appointees, but rather by federal appeals court judges selected at random for shorter terms, on a staggered basis (see this Vox piece, which is sadly also a prime example of how the Left see theirs as the only legitimate point of view and recent progressive leanings of the Supreme Court not something even worth mentioning). Of course, this is about as likely as President Trump admitting that he is a Russian stooge, resigning Nixon-style and flying away in a helicopter as a bemused nation watches him go. But it seems like a good potential approach, and one which would do much to depoliticize the highest court (even if the nomination of federal appeals court judges then became somewhat more contentious as a result).

But realistically, we go forward with the institutions we have in the form we have them and staffed by the people whom due process has put in charge. And there is a simple choice to be made by the American Left: do they press ahead and burn away remaining public faith in the Supreme Court, or do they commit — as conservatives did, when they saw that they would keep losing and losing at the hands of the judiciary unless they took a long-term approach to regaining influence — to advance their goals utilizing the legitimate, existing (if flawed) processes and institutions available to them?

Last week I attended oral arguments at the Supreme Court for the first time, hearing the somewhat dry but still fascinating case of New Prime Inc. v. Oliveira being argued before the then-eight sitting Justices of the Court. Sitting in the public seating, soaking in the weight of history within those walls and watching the best-credentialed lawyers at the top of their game argue before eight thoughtful and well-meaning jurists was an unforgettable experience, especially given that I am now studying law in the shadow of that court, right here in Washington, DC.

This case was about employment rights and whether long-distance transportation workers were required to resolve workplace disputes through compulsory arbitration rather than through the courts — an edict which currently varies depending on whether the individual is a waged employee or an independent contractor (an increasingly irrelevant distinction in today’s economy). This kind of case is the Supreme Court’s bread and butter — deciding cases whose facts would make most people’s eyes glaze over within thirty seconds, but which nonetheless need to be resolved in order to give direction to lower courts and further the broader cause of justice in the United States.

This was not a hot-button social issue which attracts hordes of placard-waving protesters to the courtroom steps. The case certainly matters, but primarily to the litigants involved and those who share their interests — transport corporations, unions and the like. Does the Left really want to wage such war on the legitimacy of the United States Supreme Court that even these workaday cases become seen by half the country as fraudulently or illegitimately decided? So that lobbyists, pressure groups and corporate interests feel emboldened to undermine every negative decision and even mount targeted campaigns against specific Justices as a result of their opinions?

I share some of the American Left’s concerns about America’s direction, particularly the slide toward authoritarianism and protectionism (though I hold the Left equally if not more responsible for these phenomena than the Trumpists, who are largely a symptom, not a cause of America’s malaise). But for the life of me I fail to see how waging an all-out assault on the remaining credibility of the most respected branch of the United States government redounds to the Left’s long-term advantage, results in a more functional country or a more harmonious society. All I see is more bitterness, more mutual distrust and more negative energy fueling the ever-growing vortex of our ongoing culture war.

The Left have every right to be angry with some of the circumstances of Brett Kavanaugh’s nomination to the Supreme Court, and with cynical Republican political behavior prior to that. But they do not have the right to enjoy decades of often-amenable Supreme Court decisions and then tear down an institution vital to all Americans when there is a chance that it may no longer satisfactorily serve their purposes.

In that regard at least, the price of the Left’s present paroxysms of rage may be more than the country can bear.


Originally published at semipartisansam.com on October 12, 2018.