Over the past decade, the Supreme Court has cleared the way for unlimited corporate spending in American elections; vetoed an Arizona law that attempted to limit the influence of such spending by providing candidates with public funds; gutted the Voting Rights Act of 1965; rewrote Barack Obama’s Medicaid expansion so that conservative states could more easily deny subsidized health care to the poor; legalized most forms of political bribery; immunized prosecutors who withhold exculpatory evidence from legal accountability; restricted the capacity of consumers and workers to sue corporations that abuse them; hobbled public-sector unions; and invented an individual right to possess firearms (among many other achievements).
The consequences of these changes to U.S. law have been profound. Outside spending in American elections has more than doubled since Citizens United. A raft of voter suppression laws have been enacted since Shelby County v. Holder. By some estimates, more than 7,000 people have died as a result of Republican states’ refusal to expand Medicaid. Meanwhile, the Roberts Court’s relentless expansion of the rights of corporations — and restriction of those held by workers, organized or otherwise — has changed the character of our political economy in ways too myriad and diffuse to succinctly summarize.
But none of that should matter to Senate Democrats.
Nor should they concern themselves with how an even more reactionary right-wing majority would reshape our democracy. Rather, Chuck Schumer’s caucus should decide whether to confirm Brett Kavanaugh to the Supreme Court solely on the basis of the quality of the schools he attended, the publications he’s been printed in, and the breadth of judicial experience he has accrued; because, at the end of the day, the substantive consequences of Supreme Court decisions should matter less to our elected representatives in the Senate than ensuring that such decisions are well-written and erudite.
This is the (maddening) implication of Akhil Reed Amar’s column, “A Liberal’s Case for Brett Kavanaugh.” In that op-ed, the renowned (liberal) legal scholar effusively praises the “impeccable credentials,” “studiousness,” and “intellect” of Donald Trump’s new Supreme Court nominee — and implores Senate Democrats to support his confirmation to the high court, in light of those qualities.
Amar makes a plausible case that Kavanaugh is well educated, well read, and well respected in his field. But he does not offer a remotely satisfying explanation for why any of that should matter to liberal Democrats’ elected representatives. Similarly, Amar credibly argues that Kavanaugh is a scrupulous practitioner of “originalism” — the jurisprudential creed that insists the Constitution should be interpreted on the basis of its intended meaning in 1788. But he never explains why liberals should regard originalism as a worthwhile mode of legal analysis — or, alternatively, why thoughtful adherence to a legal doctrine is laudable, irrespective of the quality of that doctrine. (It is hard to imagine that anyone actually endorses the latter proposition; if a Supreme Court nominee championed the notion that Ayatollah Khamenei’s interpretation of shariah should guide all constitutional law, few would insist that this was fine, so long as he or she faithfully adhered to that standard).
Amar comes closest to addressing these points when he asserts “the hard truth” that Democrats “control neither the presidency nor the Senate” and therefore, have “limited options.” Given this state of affairs, Amar suggests that Senate Democrats must accept Donald Trump’s right to appoint a Supreme Court justice — and, if they can’t “name at least two clearly better candidates whom a Republican president might realistically have nominated instead,” then they have an obligation to vote for Kavanaugh’s confirmation.
There are two problems with this analysis. The first, narrow one is that the number of Democrats (including independents who caucus with the party) and pro-choice Republicans in the Senate adds up to 51. Persuading Susan Collins and Lisa Murkowski not to abet the evisceration of abortion rights in the United States might be an unlikely feat, but it is not a manifestly impossible one.
The second, broader problem lies in Amar’s implication that Democrats have a duty to respect a Republican president’s right to appoint profoundly conservative judges. Here, again, Amar fails to justify his premise. Why is it more important for Democrats to honor the (long-lapsed) norm against vetoing Supreme Court justices on ideological grounds, then to uphold their constituents’ policy preferences? Given the enormous policy-making power that the Supreme Court has claimed for itself — and the ideological polarization of America’s political parties — why shouldn’t the elected representatives of pro-choice voters prioritize their constituents’ interests over filling an empty court seat? (One can abhor Mitch McConnell for the egregious bad faith of his procedural argument against seating Merrick Garland; but if the Senate Majority Leader had forthrightly explained that he was put in power by voters who believed abortion to be homicide — and was therefore, unwilling to exercise the powers of his office to betray them — his position would have been eminently defensible, in my view.)
And given that a plurality of American voters signaled their desire to have Al Gore and Hillary Clinton appoint Supreme Court justices, why does Donald Trump’s right to install reactionary judges supercede the American public’s right to have a Supreme Court whose composition reflects the will it expressed in national elections?
The conventional retort to these sorts of questions is to assert that the judiciary was never supposed to be a majoritarian institution: There are tensions between liberalism and democracy; but if we want to retain a political system that is both liberal and democratic, then we must respect the judiciary’s independence from the popular will.
This is unsatisfying for a variety of reasons. But the most important one is that the Supreme Court has only rarely defended (classical) liberal values against majoritarian threats. For most of American history, the court worked to restrict the individual liberties of women and nonwhite Americans. Today, one of the most vital questions facing the judiciary concerns the power of the federal government to safeguard African-Americans’ voting rights — which is to say, the foundational individual right of all liberal democracies.
And there is reason to consider Brett Kavanaugh a threat to that right. While serving on the D.C. Circuit Court of Appeals, Kavanaugh upheld a South Carolina law requiring voters to present photo identification before casting their ballots — a measure that was likely to disenfranchise tens of thousands of poor and nonwhite voters.
At present, the Republican Party enjoys a degree of power grossly disproportionate to its level of popular support. And that discrepancy is likely to grow in the coming years, given the party’s dependence on overwhelming support from older voters (who are steadily exiting this mortal coil) and white ones (who are steadily becoming a smaller share of the electorate). In this context, a Republican-nominated justice’s substantive positions on the constitutionality of gerrymandering and voting restrictions cannot be separated from the question of his commitment to upholding the bedrock values of a liberal democracy.
Akhil Reed Amar is, by all accounts, a gifted and progressive constitutional scholar. Which is part of why the flaws in his thinking on Kavanaugh’s appointment merit critical attention: Amar’s op-ed articulates a worldview with many adherents in liberal, legal circles; and the Democratic Party’s congressional caucuses are full of people who emerged from those circles.
If the Democrats are to function as an effective check on the creeping threat of perpetual minority rule in the United States, they will need to recognize that deference to institutional norms does not always fortify our republic — but rather, can actually jeopardize its survival. To subordinate substantive concerns about Brett Kavanaugh’s jurisprudence to the president’s prerogative to appoint “qualified” Supreme Court justices is not to subordinate myopic ideological preferences to liberal democratic values — it is to subordinate liberal democratic values to reverence for established norms and customs.
One can call a person who prioritizes tradition over individual liberty and democratic rule many things — “liberal” is not one of them.