Las Cruces Sun-News
Published 6:00 AM EDT Oct 13, 2018
"Fine word, legitimate." — William Shakespeare
Legitimate means "made lawful." The Supreme Court is made lawful by the U.S. Constitution. So why, in the aftermath of Justice Brett Kavanaugh’s ugly confirmation process, is there hand-wringing about the high court’s legitimacy?
The anxiety over legitimacy is related to our cherished myth that the Supreme Court is apolitical. On the eve of Kavanaugh's confirmation Justice Elena Kagan remarked, “Part of the court’s strength and part of the court’s legitimacy depends on people not seeing the court the way they see the rest of the governing structures of the country.”
Kagan added that this required “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.”
Reports do not indicate whether the audience laughed.
After Kavanaugh’s partisan outburst at his hearing, opinion pages bloomed with suggestions that the speech disqualified him. As it happens, the first and only Supreme Court justice to be impeached, Samuel Chase, was tried by Congress for "tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan." Yet even senators from the opposing party joined in his acquittal.
Chase was made lawful, so to speak, and so was Kavanaugh, despite questions about his temperament.
A reliable instrument of class power
The Supreme Court has always been an extension of politics. It is only apolitical in the sense that its members are insulated from democracy: appointed by presidents and confirmed by partisan legislators after “hearings” that are mere spectacle.
When new information and allegations came to light about Kavanaugh, it was widely portrayed as a disruption rather than a feature of the hearing process (in which nothing new is learned and the appointment proceeds on a party-line vote).
As we saw in 2016, the Senate may even prevent a president from filling a vacancy on the court, keeping the seat open until the next election. Arguably, this was a legislative coup; but it has been “made lawful,” so to speak, and history moves along.
History also moved along after the court stopped a recount in the state of Florida in 2000, deciding a presidential election on a 5-4 vote.
The charge of “judicial activism,” or making law from the bench, tends most prominently to be aimed at jurists labeled as liberals, but overall the Supreme Court has been a reliable instrument of class power.
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Its decisions define what is constitutional, establishing legal guidance for our freedoms versus the authority of government and corporations. These are inescapably political matters, decided by political appointees who do not face voters or seek re-election.
Even the comparatively progressive Warren Court, which overruled racial segregation and established some protections for the poor, made rulings concerning business and labor relations that subordinated workers’ rights to companies’ authority over workers and their products, regardless of their impacts on workers and local communities.
As for conservatism, where it effectively preserves the exploitation of some human beings by others, where it rules against autonomy over one’s body or makes voting more difficult for rightful citizens, it is activist enough. A “judicial restraint” that defers to other branches or tradition, even when they inflict the vulnerable, is decisive.
In spite of its authority, the Supreme Court is not where history stops.
Suppose we jettison this notion of an apolitical branch of government, focus on politics, and wield what powers are left to the people to answer the court through elections, legislation (including the difficult but navigable amendment process), and in direct action and social movements that exert the will of the governed.
Algernon D'Ammassa is a reporter for Las Cruces Sun-News. Share your thoughts at [email protected] Follow him on Twitter @AlgernonActor. This column originally appeared at Deming Headlight.