The End of an Era for the Supreme Court
The Appointment of Judge Kavanaugh begs the question of an independent judiciary.
Raushan Aljufri for LC Society
LE CITOYEN — A month ago, Judge Brett Kavanaugh was appointed to the Supreme Court of the United States of America, the most powerful court in the most powerful nation in the world. After a bitter and hard confirmation battle, involving character attacks, allegations of sexual abuse, and divisive partisanship, Donald Trump and the Republicans have gotten what they want: a conservative 5–4 majority in the bench of the Supreme Court.[1] The question, is at what cost?
Many things were lost at that confirmation battle. The pretense of ‘judicial neutrality’, shattered. Allegations of sexual abuse, ignored. But, most importantly of all, the legitimacy of the supreme court is now in question. This is quite troubling.
The Supreme Court, as powerful an institution as it is, fundamentally only has that incredible power from the acknowledgement of its legitimacy. The court has no means to actually enforce its rulings, it relies on the assumption that all other actors in the political system will actually comply with its rulings. Because of this, the issue of legitimacy is crucial to the power of the court. If the court has no legitimacy, then other political actors may simply ignore its ruling. Such cases have happened before, such as the 1832 Worcester v. Georgia case.
At that time, the Georgia State Government had passed a law that prohibited non-Native Americans from being present on Native American lands without a license from the state. When a missionary in the Native American lands was arrested in violation of this law, the missionary appealed his case all the way to the supreme court, in which the court found the Georgia law unconstitutional. However, this ruling was never enforced. The president at that time, President Andrew Jackson even famously said, “John Marshall has made his decision; now let him enforce it!” [2]
In the past, people have always trusted it to approach cases from a neutral perspective, its justices ideally only relying on the law and a sense of justice to decide the outcomes of its cases, not on the basis of political ideology or partisanship. Whether or not this was actually ever the case is debatable, but at the very least, people believed the court to be neutral. They acknowledged the legitimacy of the court and complied with the court’s decisions.
The appointment of Judge Kavanaugh has put the court’s so-called neutrality into jeopardy. The allegations against him, whether credible or not, has ruined his reputation, especially among those in the political left. His statements responding to the allegations however, has undoubtedly discredited his neutrality and impartiality.
In response to the allegations made against Kavanaugh, he delivered a fiery statement that dispensed with all pretense of neutrality, saying on the senate floor “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, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons.”[3] It is true that as a man that had been accused of sexual assault, it is understandable for Kavanaugh to react furiously to these allegations, but the fact remains, that a justice to the Supreme Court, he has to remain neutral and impartial, above the politics that dominates Washington. His statements had undoubtedly dispensed with this notion, his credibility lost.
And now the consequences will be felt, especially considering the 5–4 ‘conservative’ majority on the court. Consider the possible cases the Court may consider in the future. It is very likely that Judge Kavanaugh will face issues such as abortion, partisan gerrymandering, affirmative action, and many, many other hot-button issues. From the perspective of the political left, Kavanaugh is a nightmare. Consider this: an alleged sexual assaulter now sits on the Court, ready to limit abortion, strengthen gerrymandering, and limiting affirmative action among other things. Judge Kavanaugh is a much more reliable conservative then Justice Kennedy, the justice Kavanaugh is replacing. All the previous liberal victories in the court is now at risk.[4] Would Democrats now accept the legitimacy of the court’s decisions after all that has happened?
I suppose this is all simply a symptom of the underlying illness that plagues American Politics for the past few years. The partisanship of the country has now reached unprecedented levels. The political difference between the Democrats and the Republicans have grown and grown. The great American tradition of compromise and negotiation between the two parties is dead. Now, negative partisanship, character attacks and polarizing views are the order of the day, political norms be dammed. American politics have become a zero-sum game, where if one party wins, then it is considered a loss for the opposing party, and vice versa.[5] The Supreme Court has resisted a long time against this wave of political development, but it was only a matter of time before the Court falls into the partisanship of modern America. The stakes now, especially with Donald Trump as President, is simply to high. Judge Kavanaugh nomination is merely the fire that has lit the fuse, with devastating consequences.
Now, with Judge Kavanaugh on the Supreme Court, the future of the Court itself, as well as the whole system of separation of powers and checks and balance is at risk. Only God knows what will happen next in the next chapter of American politics.
[1] https://edition.cnn.com/2018/10/06/politics/kavanaugh-final-confirmation-vote/index.html
[2] https://www.saylor.org/site/wp-content/uploads/2011/10/HIST001-4.2.2-President-Jackson-the-Supreme-Court-and-Indian-Removal.pdf
[3] https://www.theatlantic.com/politics/archive/2018/09/brett-kavanaugh-delivers-fiery-opening-statement/571570/
[4] https://www.newstatesman.com/world/north-america/2018/09/five-terrifying-ways-brett-kavanaugh-s-supreme-court-confirmation-could
[5] https://www.vox.com/the-big-idea/2017/9/5/16227700/hyperpartisanship-identity-american-democracy-problems-solutions-doom-loop
