Among certain kinds of Americans, rational legal arguments against the cruel and arbitrary use of power have always been seen as inconvenient abstractions. Essentially no one with enough muscle, money, or guns has ever taken them seriously. The law for such people is a tool, not a constraint, and so are the judges who administer it.
Nevertheless, we’ve been repeatedly assured by everyone from legal scholars and historians to high school civics teachers that the United States Supreme Court, with its constitutional imprimatur and lifetime judicial appointments, is uniquely well-defended against practitioners of this sort of cynical Realpolitik. It has a successful 200+ year history, our civic mythology tells us, of defending itself against outside political interference, and has proven to be an effective sanctuary for the disinterested legal processes necessary to ensure the equal justice under law promised above its front door. Assuming all of that is true, which is, frankly, a very big assumption, how is it, then, that the jurisprudence of the current conservative majority has come to resemble something cobbled together out of bits left over from the Nazi Volksgericht, or the Catholic Church’s Tribunal del Santo Oficio de la Inquisición?
In broad strokes, I think the story goes something like this: judicial independence, like academic freedom, is an aspirational concept. It appears to exist in the real world only when nothing of much real significance — political significance — is being contested. As a result, during much of the Court’s history, events have denied — or more charitably, spared — its justices the historical agency that myth-makers have insisted on attributing to them. Far from the being arbiters of the Republic’s destiny, they have, more often than not, gone about their business as the humble servants of convention that some of the more conservative justices clearly believed themselves to be.
As it turns out, however, servants of convention, no matter how humble they may be as individuals, often have the nasty habit as a collective of preferring injustice to instability, especially when the threat of instability is largely manufactured, and the injustice can be directed exclusively toward those convention holds in low esteem. While in public justices were alway careful to genuflect to the theoretically sacred principle of equal justice for all, in private they looked upon perceived insults to the powerful with extreme disfavor, regardless of their legal justification.
The Warren Court, however, seems to have been genuinely different. Perhaps the difference was a response to the tectonic shifts in the postwar political and economic order that were becoming increasingly apparent in the Sixties, or perhaps it was down to more personal experiences in the lives of individual justices that weren’t accessible to historians and observers of the Court then, and would be even less so now. In any event, it’s clear that the decisions Warren, Douglas, Frankfurter, and Brennan came to embrace placed their jurisprudence far to the left of any that adherence to convention would seem to have dictated at the time. This was a surprise to everyone, I think, not just to conservatives, especially given the fierce suppression of the Left that was already taking place in the Fifties under the aegis of Cold War anticommunism.
One could argue (I would definitely argue) that while the Warren Court was good for justice, it was not at all good for political stability. As liberals might have expected, had they not had their eyes so firmly fixed on the prize, the powerful felt powerfully insulted, and rightly so, given their expectations. The history behind those expectations was simple enough: Whatever cases the Court took up, whatever decisions it handed down, it had always been careful not to challenge the privileged influence over public policy that members of what, for lack of a better term, could be called the American ruling class, took for granted as a tribute to their status. As the liberal majority on the Warren Court began handing down decisions like Brown vs. Board of Education, Engel v. Vitale, South Carlina v. Katzenbach, or Watkins v. United States, it didn’t take a genius to figure out that such deference was effectively at an end. To the more conservative members of the ruling class in particular, this looked like nothing so much as the betrayal of ingrates who had somehow managed to forget who put them where they were, and had gone to work for the enemy instead. (Damned Roosevelt. Damned New Deal. Damned Negroes. Damned Women. Damned Commerce Clause. Double-damned Earl Warren. Etc., etc.)
In their historical role as the defenders of privilege, representatives of the political right have since argued, somewhat disingenuously, but not entirely without justification, that liberals were guilty of accepting from the Supreme Court what at the time they couldn’t possibly have gotten from the ballot box. In cases of systematic injustice, liberals have argued in response, the Court has a duty to intervene wherever and whenever the legislative branch is prevented from supplying the necessary remedy.
I admit I was sympathetic to the liberal argument when police dogs, firehoses, and Bull Connor were being marshaled against a busload or two of Freedom Riders, not least because it was already clear to everyone in the country that without intervention by the Court, the electoral process in the southern states would continue to be so severely compromised that justice for African Americans would remain unattainable for decades to come. I’ve since come to believe, however, that what the right was denouncing as legislation from the bench was indeed antidemocratic in the technical sense, and dangerous in the more general sense that it revealed at an extremely unpropitious moment in our history just how questionable the political justifications were for the Rule of Law that the public had been asked to accept as a sort of secular sacrament.
This was made abundantly clear during the Senate confirmation hearings for Robert Bork. At the time, the ideological hegemony, not to mention a majority of Senate votes, rested in the hands of the Democrats, who, exploiting what they must have realized would be a short-lived tactical advantage, promptly ignored precedent and stated openly and unequivocally that regardless of his judicial qualifications, Bork was unacceptable on ideological grounds alone. Although I agreed with their evaluation, I had serious doubts about the wisdom of their decision. Once the dust had settled, it was clear to me that no serious observer of the American justice system was ever again going to feel comfortable mentioning an independent judiciary and the Supreme Court in the same sentence.
The Republicans complained bitterly, but they also took careful notes. In the 33 years since the Bork hearings ended, they’ve successfully moved the ground of their battle with liberals over the makeup of the Supreme Court from abstruse arguments about original intent and judicial precedent to the more promising terrain of Senate confirmation hearings, where opposition research and character assassination can yield more concrete, as well as more immediate results. After Bork, it seems safe to say that any judge ambitious enough, and well connected enough, to have a chance of being nominated to the Supreme Court, would be well advised to make certain that nothing in the public record from the time he or she entered law school, or perhaps even high school, contains the slightest trace of support for either side in the ongoing cultural and ideological wars. During the hearings themselves, direct questions, if they are answered at all, should be answered with the kind of anodyne bloviation usually reserved for sports heroes or Hollywood starlets. In extremis, outright lying should be the response of choice, especially if it can be supplemented by a display of outraged innocence (see the Kavanaugh hearings).
Unsurprisingly, such bravura performances of our all-American black robe commedia dell’arte have yet to deliver us the jurisprudence that all evolving democratic societies need and should have every right to expect, nor are they ever likely to. Weak reeds that they are, this isn’t entirely the fault of the justices themselves. A lifetime of displaying their malleability, their willingness to go along to get along, is indisputably what snagged them a seat on the Supreme Court bench in the first place. Once they’re safely settled into what is effectively their new sinecure, integrity, even if any of them can remember what is actually meant by the word, will almost certainly look like more work to them than it could ever be worth. Sadly, that’s as much on us as it is on them.
As I see it, the outlook, especially in the short term, is dire. In the present political climate, we can almost certainly expect future Supreme Court nominees to have on their résumés not only an extended history of Federalist Society ass-kissing, but also appalling examples of sadism toward the less fortunate. There isn’t going to be any way to keep them off the Court, either, at least not any way that’s compatible with civilized behavior. Should those of us who are declared opponents of the authoritarian right give up, then, and let them turn the United States into another Turkey, or Hungary, or Brazil? Or should we prepare ourselves instead for the second civil war they’ve been threatening us with ever since Barry Goldwater first assured the assembled brownshirt wannabes of the Republican Party that extremism in the defense of liberty is no vice? (NB: these are not questions that either Hillary Clinton or Bernie Sanders is qualified to answer. Make of that what you will….)