For nearly two months now, the Senate has been pretending to consider the president’s nomination of Brett Kavanaugh—a partisan hack undistinguished but for his marked commitment to the limitlessness of executive power—as an associate justice on the Supreme Court. A painfully sad sequel to the judicial coup d’état that was last year’s elevation of Neil Gorsuch to what rightfully should have been Merrick Garland’s seat, Kavanaugh’s confirmation now appears all but certain, presenting a clear and present danger to the rights and liberties of countless Americans—a calamity from which the country will not recover, if it does at all, for many, many years.
The problem goes beyond Kavanaugh, however, and deeper than Trump. How is it possible—and why should it be—for a proudly incompetent, boisterously corrupt president who, by any reasonable measure, lost the election by millions of votes to shape the interpretation of the Constitution by the high court for decades to come? Why is it that the fate of the republic itself hinges on the health and well-being of a single berobed octogenarian? Somewhere in the constitutional design of the Supreme Court something is not working—or, more frighteningly, perhaps it is working all too well.
To find out what really ails the Supreme Court, and how it can be fixed, we asked a few progressive constitutional lawyers to offer their prescriptions.
The Supreme Court has always been a political institution, but in recent decades it has become an adjunct of the Republican Party. Today’s conservative majority on the Court busts labor unions (which remain the backbone of the Democratic Party) and undermines class-action litigation (which the Republican justices regard as a gravy train for plaintiffs’ lawyers, who contribute disproportionately to Democratic coffers). That same majority legitimizes voter suppression to diminish turnout among racial minorities, poor people, and young adults—all to the disadvantage of the Democratic Party. Conservative justices have refused to intervene against gerrymandering, which vastly inflates Republican power at the state and national levels. These same justices have also used dubious interpretations of the First Amendment in campaign-finance rulings that inevitably redound to the benefit of the Republican Party, which derives a disproportionate share of its resources from billionaire donors. The Court’s Republican majority ferrets out nonexistent animus against conservative Christians in a Colorado civil-rights commission, while turning a blind eye to transparent animus against Muslims within the Trump administration. And, lest we forget, Republican justices shut down a recount that jeopardized the prospects of their party’s presidential candidate.
When progressives win back political power, they will be confronted with the most conservative Supreme Court in nearly a century. It is easy to imagine that Court concocting constitutional arguments against virtually every measure a progressive administration might pursue—for example, universal health care, a ban on assault weapons, protections for voting rights, and environmental regulations to mitigate the effects of human-caused global climate change.