Outside the Box: Could Kavanaugh spell the end of the Supreme Court?

From the nation’s earliest days, Americans have idealized the federal courts as nonpartisan and objective, insulated from the political pressures felt by elected officials. 

In the Federalist Papers, Alexander Hamilton explained that life tenure would allow judges to independently review the constitutionality of legislative and executive actions without courting popularity or fearing a backlash from members of Congress or the president.

Reality has never quite matched the ideal. Judges are human beings with a personal set of biases, political philosophies, and experiences.  And, as human beings, they are not immune to political pressure — even if they know that no decision they make from the bench will cost them their jobs, absent impeachment and removal from office. 

Supreme Court decisions have been influenced by political considerations since at least Marbury v. Madison  in 1803, and the Court has often been a part of political debate.  But in the 65 years since the Warren Court began issuing rulings upholding civil rights and limits on the power of law enforcement, Republicans have been running against “activist judges” who, they argued, substituted their personal political goals in place of the Constitution.

Supreme Court justices, of course, follow the news and understand that their decisions can become a topic of political controversy.  For example, the 1992 Planned Parenthood v. Casey decision overruled part of Roe v. Wade while upholding what three justices described as Roe’s “central holding” that access to abortion cannot be completely denied before a fetus reaches viability. In that decision, Justices O’Connor, Souter, and Kennedy acknowledged that the Court’s legitimacy depends on public opinion. In their words, the public must perceive the Court as making decisions based on legal principle rather than as “a surrender to political pressure.” 

If Americans can no longer distinguish Supreme Court justices from members of the elected branches, it is hard to see why it’s worth having a Supreme Court at all. 

These three justices in Casey were specifically addressing their concern that the public might see a decision to overturn an especially controversial ruling like Roe as being driven by political considerations rather than legal principle. But their observation applies more generally.  The Supreme Court, and federal courts in general, derive their legitimacy from the notion that they are doing something different than the ordinary politics practiced by members of Congress and the president. 

If Americans can no longer distinguish Supreme Court justices from members of the elected branches, it is hard to see why it’s worth having a Supreme Court at all. 

Newly minted Justice Brett Kavanaugh’s confirmation hearings make clear that the U.S. may be moving toward a crisis when it comes to the Court’s legitimacy.  Kavanaugh’s rage-filled response to Susan Ford’s testimony before the Senate Judiciary Committee was nakedly partisan.  Kavanaugh sounded more like a political candidate than a federal judge as he, without a shred of evidence, blamed the Clintons for multiple allegations that he had engaged in sexual misconduct, including the attempted rape Ford described.

Retired Supreme Court Justice John Paul Stevens, himself named to the Court by a Republican president, withdrew his support for Kavanaugh’s confirmation after watching the hearings.  Stevens observed that Kavanaugh “demonstrated a potential bias” toward parties that could come before the Court.

Public faith in the Court’s legitimacy depends on the assumption that Supreme Court justices don’t decide cases based simply on partisan preferences.  We can accept that some justices more often reach decisions that are in line with politically liberal preferences, while others come out in favor of political conservative preferences.  What isn’t acceptable is for judges to vote along party lines like members of the Senate or the House.

Supreme Court justices, past and present, have proven capable of reaching outcomes at odds with their perceived partisan affiliation. For instance, in Clinton v. Jones, Justices Ruth Bader Ginsburg and Steven Breyer were part of an unanimous decision refusing to grant then-President Bill Clinton immunity from civil litigation while he was in office.  Justice Antonin Scalia was one of eight justices inHamdi v. Rumsfeld who refused to accept the George W. Bush administration’s position that it could imprison a U.S. citizen suspected of being a member of the Taliban without providing a hearing to test the government’s case.  More recently, Chief Justice John Roberts cast the fifth and deciding vote to uphold the Affordable Care Act against constitutional challenge, dashing Republican hopes of achieving their goal of dismantling Obamacare.  As noted, Justice Kennedy provided the fifth vote to uphold a central part of Roe v. Wade in the Casey decision.

It is difficult at this point, if not impossible, to see Kavanaugh joining a decision that would frustrate Republican priorities. Kavanaugh’s performance at his confirmation hearings was widely seen as making his partisan bona-fides clear. 

There is already evidence that Kavanaugh’s confirmation hearings, combined with Republicans’ successful effort to deny President Barack Obama the opportunity to fill a vacancy on the Court during his time in office, have increased the likelihood that Americans will view the Court in partisan terms.  What will happen if Justice Kavanaugh provides a fifth vote to overrule or further undermine Roe v. Wade, or to limit the reach of the Mueller investigation?  Public confidence in the Court could reach a point of no return, with Americans asking whether the Supreme Court still serves a useful and legitimate purpose.

Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. He is the author of “Power Without Constraint: The Post 9/11 Presidency and National Security,” published in 2016 by the University of Wisconsin Press.

Read: Roberts says Supreme Court remains independent, nonpartisan

Also: Trump may not be done shaping the Supreme Court in his image

Be Sociable, Share!

Related Posts


MarketTamer is not an investment advisor and is not registered with the U.S. Securities and Exchange Commission or the Financial Industry Regulatory Authority. Further, owners, employees, agents or representatives of MarketTamer are not acting as investment advisors and might not be registered with the U.S. Securities and Exchange Commission or the Financial Industry Regulatory.

This company makes no representations or warranties concerning the products, practices or procedures of any company or entity mentioned or recommended in this email, and makes no representations or warranties concerning said company or entity’s compliance with applicable laws and regulations, including, but not limited to, regulations promulgated by the SEC or the CFTC. The sender of this email may receive a portion of the proceeds from the sale of any products or services offered by a company or entity mentioned or recommended in this email. The recipient of this email assumes responsibility for conducting its own due diligence on the aforementioned company or entity and assumes full responsibility, and releases the sender from liability, for any purchase or order made from any company or entity mentioned or recommended in this email.

The content on any of MarketTamer websites, products or communication is for educational purposes only. Nothing in its products, services, or communications shall be construed as a solicitation and/or recommendation to buy or sell a security. Trading stocks, options and other securities involves risk. The risk of loss in trading securities can be substantial. The risk involved with trading stocks, options and other securities is not suitable for all investors. Prior to buying or selling an option, an investor must evaluate his/her own personal financial situation and consider all relevant risk factors. See: Characteristics and Risks of Standardized Options. The www.MarketTamer.com educational training program and software services are provided to improve financial understanding.

The information presented in this site is not intended to be used as the sole basis of any investment decisions, nor should it be construed as advice designed to meet the investment needs of any particular investor. Nothing in our research constitutes legal, accounting or tax advice or individually tailored investment advice. Our research is prepared for general circulation and has been prepared without regard to the individual financial circumstances and objectives of persons who receive or obtain access to it. Our research is based on sources that we believe to be reliable. However, we do not make any representation or warranty, expressed or implied, as to the accuracy of our research, the completeness, or correctness or make any guarantee or other promise as to any results that may be obtained from using our research. To the maximum extent permitted by law, neither we, any of our affiliates, nor any other person, shall have any liability whatsoever to any person for any loss or expense, whether direct, indirect, consequential, incidental or otherwise, arising from or relating in any way to any use of or reliance on our research or the information contained therein. Some discussions contain forward looking statements which are based on current expectations and differences can be expected. All of our research, including the estimates, opinions and information contained therein, reflects our judgment as of the publication or other dissemination date of the research and is subject to change without notice. Further, we expressly disclaim any responsibility to update such research. Investing involves substantial risk. Past performance is not a guarantee of future results, and a loss of original capital may occur. No one receiving or accessing our research should make any investment decision without first consulting his or her own personal financial advisor and conducting his or her own research and due diligence, including carefully reviewing any applicable prospectuses, press releases, reports and other public filings of the issuer of any securities being considered. None of the information presented should be construed as an offer to sell or buy any particular security. As always, use your best judgment when investing.