Yale lawprof Akhil Reed Amar argues that liberals shouldn’t fear the newest nominee for the Supreme Court. University of Calfornia at Irvine lawprof Leah Litman argues that he will be terrible, but takes an entirely new tack from her voluminous writings about how everything that relates to Trump in any way is the Apocalypse.
The courts were never going to save our constitutional democracy, but that doesn’t mean they are unimportant.
Up until the point where Kennedy retired, the Supreme Court’s one job was to protect her personal flavor of vulnerable no matter what the law provided. You know, women win, men lose. Corporations lose, workers prevail. Subject matter be damned. Reasoning is for kids. Law? Only haters cared about law, provided it didn’t produce her desired goals. When it did, she loved the law.
To Dean Gerken and the Yale Law School leadership,
We write today as Yale Law students, alumni, and educators ashamed of our alma mater. Within an hour of Donald Trump’s announcement that he would nominate Brett Kavanaugh, YLS ‘90, to the Supreme Court, the law school published a press release boasting of its alumnus’s accomplishment. The school’s post included quotes from Yale Law School professors about Judge Kavanaugh’s intellect, influence and mentorship of their students.
Yet the press release’s focus on the nominee’s professionalism, pedigree, and service to Yale Law School obscures the true stakes of his nomination and raises a disturbing question:
Is there nothing more important to Yale Law School than its proximity to power and prestige?
Yale put out a press release after yet another distinguished alumnus was nominated for the Supreme Court. Deal with it, Harvard. It is, without a doubt, a feather in the law school’s cap to keep producing Supreme Court justices, and yet these students, et al., are “ashamed”?
Judge Kavanaugh’s nomination presents an emergency — for democratic life, for our safety and freedom, for the future of our country. His nomination is not an interesting intellectual exercise to be debated amongst classmates and scholars in seminar. Support for Judge Kavanaugh is not apolitical. It is a political choice about the meaning of the constitution and our vision of democracy, a choice with real consequences for real people. Without a doubt, Judge Kavanaugh is a threat to the most vulnerable. He is a threat to many of us, despite the privilege bestowed by our education, simply because of who we are.
It’s one thing to disagree with Judge Kavanaugh’s judicial philosophy, or even to challenge his qualifications for SCOTUS, though it’s universally acknowledged by modestly intelligent people that he is exceptionally well qualified, even if you don’t agree with some of his rulings or his view of constitutional or statutory interpretation.
But this is an “emergency.” He is a “threat to many of us.” Does he sneak into the library at night and rip the pages out of the Supreme Court Reporter?
Now is the time for moral courage — which for Yale Law School comes at so little cost. Perhaps you, as an institution and as individuals, will benefit less from Judge Kavanaugh’s ascendent power if you withhold your support. Perhaps Judge Kavanaugh will be less likely to hire your favorite students. But people will die if he is confirmed.
Die? Well, damn, that is an emergency. Ripping pages out of law reporters is one thing, but killing people is for realz. Except Judge Kavanaugh won’t wrap his judicial fingers around any Yale co-ed’s throat, nor grab his AK and spray the libe.
But it’s true that the decisions of the Supreme Court occasionally mean people will die. They deny stays of execution for the insane and intellectually deficient. They incentivize police to kill rather than risk harm by qualified immunity. Their decisions affect people, and sometimes people die because of them. But that’s not what concerns these Elis.
Since his campaign launched, Trump has repeatedly promised to appoint justices who would overturn Roe v. Wade. Overturning that decision would endanger the lives of countless people who need or may need abortions — including many who sign this letter. Trump’s nomination of Judge Kavanaugh is a reliable way to fulfill his oath. Just a few months ago, Judge Kavanaugh ruled to deny a detained immigrant minor her constitutional right to abortion. Decades-old Supreme Court precedent makes clear that the government may not place an undue burden on a pregnant person’s access to abortion. But Judge Kavanaugh clearly did not feel constrained by precedent: what could be a greater obstacle than a cage?
Putting aside the question of whether there might be some distinction between the issue of whether the rights of, and duties owed to, an undocumented immigrant in custody are the same as those of citizens or immigrants here lawfully, the position taken by Judge Kavanaugh is certainly subject to passionate disagreement. But?
We see in these rulings an intellectually and morally bankrupt ideologue intent on rolling back our rights and the rights of our clients.
There is no intellectual disagreement possible to the unduly bankrupt, and so Judge Kavanaugh’s wrong decision isn’t merely wrong, but “morally bankrupt.” And Leah Litman similarly seized upon this opinion to make the inferential leaps necessary to reach the “people will die” hysteria.
Judge Kavanaugh’s reasoning provides a perfect example of how judges can whittle down the right to decide to end a pregnancy so that it is practically unavailable to women even without outright overruling Roe v. Wade. Upholding needless restrictions on abortion can make safe and legal abortion unavailable to women, too.
The cry here is that Judge Kavanaugh might provide a fifth vote to reverse Roe v. Wade. Put aside that Roe was a criminal case, where the right to bodily privacy, and hence abortion, and hence the criminalization of abortion was in violation of a right that arose from evolving constitutional standards and the emanations and penumbras thereof. Put aside that the right to an abortion has become engrained in the fabric of American society since Roe was decided in 1973, even if it remains extremely controversial as some wrongthink folks believe it involves the murder of unborn babies. Put aside that a reversal by the Supreme Court would create such massive upheaval in the law and society that it’s reversal would fundamentally undermine the integrity of the Supreme Court.
There is nothing in Roe v. Wade that precludes Congress, or state legislatures, from enacting laws safeguarding the right to an abortion. There is nothing about reversing Roe that would mandate criminalizing the performance of an abortion. Even Litman tacitly grasps that in our tripartite government, it’s the legislative branch that creates laws.
But it is not just about the debates raging in the court this year. For the next several decades, the federal courts could be available to strike down policies that progressives obtain in the halls of Congress, the presidency or the states.
If the letter from Yale law students and their friends is any indication, Litman’s fear is overstated. Congress will never pass progressive policies, as ignorance and hysteria aren’t particularly persuasive, and the ascendancy of Yale Law students will come to a brutal end because they are no longer capable of rational thought. They’ve issued a letter to prove it.