How the Supreme Court became a political prize long before Kavanaugh

Deborah Pearlstein is professor of law and co-director of the Floersheimer Center for Constitutional Democracy at Cardozo School of Law at Yeshiva University.

If the confirmation of Brett Kavanaugh to the Supreme Court – and the brutal Senate struggle that preceded it – raises the fear that the court is sliding in the direction of alarming bias, David Kaplan has news for us all. According to him, the court lost its legitimacy as an apolitical arbiter of the nation's most important constitutional disputes long ago.

In his book "The Most Dangerous Branch" Kaplan describes the American government system as a clearly limited role for the unelected members of the Supreme Court. The judges could correctly weigh to interpret only rights explicitly laid down in the text of the Constitution, such as Fourth Amendment protection against unreasonable searches and seizures. The court could also intervene to protect the rights of minorities, because the constituents of the constitution recognized that the popular will could not always be trusted to protect the fundamental rights of an unfounded group. And the court could intervene to ensure that the crucial processes of democracy, such as voting and elections, went smoothly. Except that, as Kaplan claims, all other questions of public debate should be left to the rough and tumble of electoral politics. Kaplan's view of the role of the court is, in important respects, contrary to the view of many scholars of the court and the constitution.

Kaplan argues that the Supreme Court remained within the limits which, with a few exceptions, he described for a large part of his history until his ruling in 1973 in Roe v. Wade. In that case, Kaplan states, the judges have fully arrived at the recognition of individual rights that have not been explicitly included in the Constitution, without logically or convincingly explaining why the Constitution should be read in order to protect a right to abortion . "Roe v. Wade … was a turning point for the Court," Kaplan writes, "when the judges unnecessarily placed themselves in the middle of a case that was best left to the democratically responsible branches."

In telling Kaplan, roe radicalized republicans who began to see the court as a political institution and the seats of the judges as political prizes. After roe, the court became a forum for party battles under the guise of constitutional legal questions. The judges – selected through an increasingly biased confirmation process – were only too happy to deal with the cases. Kaplan explains that it is the result of the kind of court we have today, where judges rule political divisions along partisan lines based on legal reasoning that is little more than political preference.

To build his business, Kaplan dedicates the first half of the book to illustrating the political theater of recent confirmation hearings. He gives small anecdotes that are meant to reveal the healthy egos of the men and women at the current court. Many of the stories about lunch chats among the judges and their clerks are too small to convey meaningful insights. Still, in a court where a figure like Justice Hugo "Ego" Black served more than three decades, it is not hard to believe that modesty is an elusive trait.

The second half of the book reflects most of Kaplan's argument, with a focus on a handful of the most controversial decisions of the Supreme Court since roe – from Bush v. Gore to Citizens United – show how the judges make decisions and make decisions about matters they have, according to Kaplan, no legitimate role in making decisions, and based on legal reasoning that masks only partisan goals.

The small set of high-profile 5-to-4 views Kaplan highlights are meritorious goals. The ill-defined constitutional basis for the right to abortion set out in roe has even received criticism from Justice Ruth Bader Ginsburg, who is also a great defender of abortion rights. Likewise, the more recent opinion of justice Anthony Kennedy, who recognized a constitutional right to same-sex marriage, was accused by scholars of both parties who argued that he did not make clear where in the constitution or jurisprudence he found the constitutional right to "equal dignity" to which the marriage law was based. As well as damnation, Kaplan's legal criticisms of recent decisions protecting the laws of the Voting Rights for minority voters (notwithstanding the overwhelming bipolar approval by the Congress of Law) and anti-corruption laws regulating campaign finance (prescriptions that had also won bipartisan support). In all these cases, the judges did not reject popular, democratically enacted laws, because the Constitution or the earlier cases of the court required this, but because, as Kaplan argues, the five judges in the majority did not like what those laws did.

But the story that Kaplan presents here – that a runaway court & # 39; unjustly seized the power of elected legislators and thereby "wasted its institutional capital & # 39; – is easier to argue than to prove. Even if he disregards his disputed view of the proper role of the court, his attack on the Supreme Court's recent behavior is difficult to justify on his own terms. Accepting, as Kaplan does, that the court must play a certain role in checking laws that harm minorities or disadvantaged populations, issues relating to gay rights and even reproductive liberties seem reasonable plausible in the right field of judicial concern. Similarly, matters concerning campaign financing and voting rights deal with questions about the maintenance of democratic processes, an area which, according to Kaplan, also falls under the jurisdiction of the court. It is certainly possible to criticize the results in these cases and the logic of the opinions that the judges have produced. But these complaints differ from Kaplan's claim that the court acted in a constitutionally unlawful manner in the case at all.

Equally problematic, it is far from clear that the public perception of the court has suffered in the course of time because of its decisions, as Kaplan claims. On the contrary, the Gallup poll showed that public confidence in the Supreme Court in the 15 years after that generally increased Roe v. Wade. And while more recent opinion polls show that in the past decade confidence in court has fallen slightly on average (although it has been tapped again since 2016), there are no indications that such movements are associated with overall confidence Bush v. Gore, Citizens United or a specific case. It is especially difficult to show that roe marked an important turning point in the nature of the confirmation hearings in the Senate; President Gerald Ford's predecessor from 1975, John Paul Stevens, received no question roe .

The bigger puzzle for all of us is why, given the long history of political divisive action, the court has retained its public approval. A partial answer may lie in one of the early anecdotes of the book, in which the death of Justice Antonin Scalia is told on a holiday farm in Texas. When the sheriff arrived at the ranch, he asked: "What is his name again?" When he heard the name, he asked again: "Who is he?" Scalia's friends explained for the third time that he was a dish at the Supreme Court of the United States. "Is that in Texas?" The sheriff asked.

That sheriff is far from alone. For a long time the public has shown a deep inattention to the court, which in a perverse way has been able to help protect us from the consequences of what would mean a real loss of public belief. That is part of the reason why the Kavanaugh hearings were so important. The fact that they have attracted a large television viewing audience can be a small step towards legal literacy in America. But if so, a warning is displayed. We are still living in a country where people – and presidents – regularly adhere to the Supreme Court rulings. The court has no own army; people participate because it is normal to do. But standards can change. In the past, the Judicial Committee of the Senate proposed the professional documents of the nominees to the members for assessment, and the nominees rejected a partisan attack. Those senate norms turned out to be surprisingly fragile. We can only hope that the standards that the court support are permanent.

The Most Dangerous Branch

Within the attack on the Constitution of the Supreme Court

By David A. Kaplan

Crown. 464 pp. $ 30