Crashing The Court: Kavanaugh and Consequences

The word going forward will be “legitimacy,” as the Least Dangerous Branch has only one real arrow in its quiver, that it possesses the trust of a nation. And as my former Fault Lines writer, Cristian Farias, contends, “Kavanaugh’s Confirmation Shreds the Pretense of an Apolitical Supreme Court.”

On the eve of Brett Kavanaugh’s confirmation to the Supreme Court, not long after Senator Susan Collins offered the apologia that clinched his elevation, Justice Elena Kagan was asked how she and her colleagues managed to find comity and stay above politics — even at a time when Washington was burning with partisan rage over the soon-to-be newest member of the institution she loves.

Kavanaugh and the ugly politics of his nomination remained nameless, but Kagan all but conceded that with him on the Court, and Justice Anthony Kennedy gone, things won’t ever be the same. “Part of the Court’s strength and part of the Court’s legitimacy depends on people not seeing the Court in the way people see the rest of the governing structures of this country now,” Kagan said at a Princeton University event celebrating, of all things, the contributions of women to that institution. “In other words, people thinking of the Court as not politically divided in the same way, as not an extension of politics but instead somehow above the fray.”

Putting aside the great many issues raised on both sides, from Kavanaugh’s judicial philosophy to how much he likes beer, from his being a Rehnquist fanboi to whether his bizarre “conspiratorial” attacks at his judicial confirmation hearing were those of maligned father or a man who would be justice, Brett Kavanaugh is nonetheless Associate Justice Kavanaugh. Hate him all you want, but we’ve got no other, no better, Supreme Court.

I understand Cristian’s angst, even if I’m disinclined to grasp for dear life to every dubious claim that furthers the cause. Even if Kavanaugh was the perfect model of probity, he wouldn’t be my flavor of justice. Then again, neither would anyone else Trump might appoint, so I’ve long since come to grips with the fact that the newest member of the Nine wasn’t going to win my heart.

But he’s there now, for better or worse. Yet, it seems that everybody knows better than me what he’s going to do with his newfound one-ninth power over a branch of government. The certainty with which he’s going to destroy all that’s good, because he’s nothing but a political hack appointed to do Darth Cheeto’s bidding, isn’t in doubt. Except to me. Maybe I’m just an eternal optimist, or maybe I’m just naive, but it won’t stop me from arguing my case to the Supreme Court with the intention of winning, even if there are five justices who might be hard to persuade.

The brute ascension of Kavanaugh to the Supreme Court, in one of the closest confirmation votes in all of American history, throws a wrecking ball at any remaining illusion, or shared conception, that the Supreme Court is the only apolitical, nonpartisan branch of the federal government. If everything Donald Trump touches dies, as Republican strategist Rick Wilson has written, his appointment of Kavanaugh is, in effect, the culmination of a campaign to capture and delegitimize every corner of our constitutional structure; the presidency, Congress, and now the Supreme Court all bear his imprimatur.

Kavanaugh was a lawyer when Trump was still doing a silly television show. Kavanaugh was a judge when Trump’s campaign for the presidency was still such an outlandish impossibility that it was hard to take it seriously. Kavanaugh wasn’t a Trump sycophant before. Will he be Trump’s “boy” now?

The brutally political nature of the confirmation hearings is undeniable, though it can’t be attributed to one side or the other. There has never been a more political confirmation, a dirtier hearing, a more unseemly and outrageous public display, than the show put on by the Senate Judiciary Committee. If you see a hero there, then it’s just your bias. No one made us proud. And it ultimately came down to pure political fiat, the worst of what partisanship can produce. It’s no surprise that Kavanaugh emerged tainted by these proceedings. He didn’t help himself, for sure, but then, there was no way he was going to come out of this without being covered in feces.

Some will persist in the debate about whether he lied, sexually assaulted Christine Blasey Ford, was a drunk in college or worse. To what end? Despite believers believing in what they believe, and refusing to let go of their absolute certainty in things they don’t know but believe, he’s still on the Supreme Court.

The question now is whether the Supreme Court, with Justice Kavanaugh and the “conservative” wing, can fulfill its constitutional function or has lost the trust of a nation. A number of law profs have emoted that the Court is dead, gone, lost to politics.

That Court is gone forever. We will spend at least the rest of my lifetime fighting over its rotting corpse. No prating about civility can change that fact. The fight is upon us now, and the party that shirks it will be destroyed.

It may be that the confirmation hearing will have a lasting impression on Justice Kavanaugh. It may be that he was too dedicated to a conservative vision of the law that it doesn’t matter. But this melodramatic hyperbole isn’t going to help. No, it’s not about civility, per se, but about the fact that this nation has no alternative to the Supreme Court, lest they put a dunking pool at One First to see if the witch floats. For the same reasons we have a Supreme Court in the first place, we still need one.

Even if we assume that Justice Kavanaugh isn’t wise enough, strong enough, possessed of sufficient personal integrity today to overcome the fury of the unduly passionate, there are eight other justices on the Court. One justice can’t do anything without the agreement of four others. And despite the strenuous, if infantile, efforts to taint the “conservative” wing of the Court for not being as progressive as Linda Greenhouse would prefer, that doesn’t change their legitimacy.

Yet, I refuse to give up on Justice Kavanaugh. I don’t know how he will vote, what arguments will push him to one side or another. You may think you do, but I lack the capacity to see into other people’s minds. My views may not prevail, just as they didn’t for most Supreme Court decisions over the past 50 years, but that doesn’t mean I won’t keep arguing for what I think is the right outcome.

You can spend your time hating Kavanaugh for being horrible. I prefer to spend my time fighting for good law. And as long as Justice Kavanaugh is on the Court, I will spend my time trying to persuade him to see the law my way rather than scream about how awful he is.

18 thoughts on “Crashing The Court: Kavanaugh and Consequences

  1. jfjoyner3

    Is someone suggesting the Supreme Court is not already influenced by politics? And, so what if SCOTUS is informed by a judge’s political leanings in certain deliberations? How often does it really make a difference? (The last question was asked with hope for an answer.)

    To this non-lawyer it seems like a lot of ink gets spilled pointing to the political leanings of SCOTUS justices … in certain cases. The litigants and issues of most SCOTUS cases go unnoticed apart from SCOTUS watchers. Despite the barrels of ink, I have been surprised by high-profile decisions of “conservative” judges who were expected to go one way, but followed a different path arriving at an unexpected destination (e.g., Roberts on ACA). I do not recall being surprised by “liberal” judges. The opinions of the latter “group” seem more predictable. Could be that “liberal” justices more consistently act on the political leanings credited to them by political specialists and media-types?

    I’m inclined to bet Kavanaugh will perform as the legal troglodyte his marketing consultants have touted and through fidelity to such drudgery occasionally will delight those who have opposed him with truculence. When it happens: if we know Chuck can manage to find (sleight) praise for the President’s recent trade deal, well, who knows, maybe he can manage to deconstruct his mental image of Kavanaugh as Harvey-Weinstein-in-a-black-robe and re-construct it as someone more comfortable like, well, WJC.

    1. SHG Post author

      With rare exception, most federal judges (I can’t speak to Supreme Court justices, as I’m not personal friends with any and they never invite me to dinner) try very hard to show faithfulness to the law, within the paradigm of their understanding. To outsiders, it may appear to be political, but it’s a shallow grasp of their jurisprudence. They aren’t hacks, and most are exceptionally accomplished lawyers and people of good faith. But they are constrained to approach their decisions based upon their belief that sound jurisprudence compels their outcome, rather than politics compels their outcome and the rest of the rhetoric is just a bullshit rationalization to get there.

      Not every judge. Not every decision. But if it’s just politics, then there isn’t much point to any of this.

      1. PseudonymousKid

        If Kavanaugh is good enough, which I now doubt given his more recent performances, he’ll just Posner his way through ruling, molding the paradigm to get to a desired outcome. The danger comes in not being able to tell the difference between principled decision-making and partisan hackery. Is there no way to root out the corruption that you admit exists?

  2. Richard Kopf


    As of January 2018, according to the Supreme Court Database, and since 2000, a unanimous decision has been more likely than any other result — averaging 36 percent of all decisions. Even when the court did not reach a unanimous judgment, the justices often secured overwhelming majorities, with 7-to-2 or 8-to-1 judgments making up about 15 percent of decisions. The 5-to-4 decisions, by comparison, occurred in 19 percent of cases.

    What many forget is the Supreme Court’s docket is not solely or even mostly comprised of issues of genitalia. Dormant commerce clause cases anyone?

    If anything, I am betting that the Court under Chief Justice Roberts, a smooth operator if there ever was one, will recede, slightly, from public view for a time and Justice K will be happy to go along. The problem with Mr. Farias’s adoption of Chicken Little’s dictum is that Mr. Farias sees the Court solely through a dark political lens. Even now, that is a facile misunderstanding of what really happens at the Supreme Court in the great majority of cases. I know this view doesn’t fit the terror de jour, but it happens to be demonstrably true.

    All the best.


    PS. Remember the horrible Justice Scalia who thought Roe was Constitutional nonsense because, well, it was? He may also have been one of the better friends of CDLs in recent memory.

    1. SHG Post author

      When Scalia wrote Crawford, I praised the decision, much to the fury of my brethren, who despised Scalia because reasons. Never having been invited to dinner by Nino, any personal feelings I might have toward him didn’t strike me as relevant. I only cared about what he decided, not about whether he was the kind of fellow I would like to go duck hunting with. My brethren were very angry with me.

      1. N. Freed

        I brought up Crawford once or twice in response to anti-Scalia rants, but it’s too complex to make the point in casual conversation. So I switched to Scalia’s dissent in BrandX, with its awesome Pizza delivery analogy: “No, we do not offer delivery–but if you order a pizza from us, we’ll bake it for you and then bring it to your house.”

        But these days I pretty much just keep my mouth shut.

        1. SHG Post author

          It’s so much easier to just pick the ones you love and hate and leave it at that. No thought required.

      2. Mark M.

        Crawford is, was, and will remain one of the best tools in the toolbox of those who go to war daily in the trenches. I didn’t agree with Nino on much, but I revere him for Crawford, and think about him in reference to his dedication to the Sixth Amendment on a daily basis.

    2. Jay

      I, for one, welcome fewer poorly written opinions about how the 14th amendment secures the rights of whatever minority is popular with the left and Kennedy. Hope you’re right.

  3. Fubar

    Despite believers believing in what they believe, and refusing to let go of their absolute certainty in things they don’t know but believe, he’s still on the Supreme Court.

    The question now is whether the Supreme Court, with Justice Kavanaugh and the “conservative” wing, can fulfill its constitutional function or has lost the trust of a nation.

    Perpetual feuds always charrin’
    Black robe fringes aren’t rare, scarce or foreign.
    They’re always just there,
    Like Earth, water and air.
    Remember “Impeach Earl Warren”!

  4. B. McLeod

    I am surprised that any actual member of the Court really thinks the public viewed them as apolitical prior to this confirmation. I don’t think the newest member changes their image at all.

  5. Jim Tyre

    it won’t stop me from arguing my case to the Supreme Court with the intention of winning

    Which assumes that you will argue a case in SCOTUS. I have trouble seeing that happening.

      1. Jim Tyre

        Nice. ‘-)

        Given the opportunity, I think you’d do a fine job. But we know that the chances of your getting the opportunity are, well, not good, which has nothing to do with your abilities.

        When I was a baby lawyer – I had been practicing for about 4 years – I had a First Amendment case that did go to SCOTUS. I wanted to argue it, but the powers that be decided it should be argued by a veteran SCOTUS advocate. He lost. Had I argued it, perhaps the course of legal history would have changed. Or perhaps not.

        1. SHG Post author

          From what I’ve seen of the new-fangled “Supreme Court Bar,” I am unimpressed. To this day, Tom Goldstein hates me, though I think he’s a bit too sensitive.

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