This month’s US Senate Judiciary Committee hearing to consider the nomination of Brett Kavanaugh to a seat on the Supreme Court marks the culmination of a decades-long campaign by the right-wing Federalist Society to reshape the judiciary. For those devout conservatives and their moneyed backers, faced with the prospect of massive demographic and generational shifts in the country’s body politic, the strategy has long been to find a way to limit severely access to authentic democratic governance in the United States for generations to come. They now seem on the verge of achieving their goal.
The complex interplay between the three branches of the US federal government—the executive, the legislative, and the judicial—is at the heart of American democracy’s system of checks and balances. But now the highest level of the judiciary is in imminent danger of losing the legitimacy that ultimately is the sole basis of its authority. With the coming addition of Kavanaugh to the bench, the American people will need to ask themselves if the Court can still be trusted properly to exercise its lawfully derived powers.
The very word “legitimacy” has etymological roots going back to the concept of lawfulness, from the Latin legitimus. But over the years, it has also become entwined with the related concept of proper (or improper) origins, as in the legitimacy of one’s birth.
Historically, that fraught question could determine whether one had the right to inherit property, titles of nobility, and the like. Throughout medieval times, only those born into lawfully constituted and recognized unions were so entitled; otherwise, they were considered “bastards” or “misbegotten,” a word that still regularly shows up as a synonym for “illegitimate.” Entire wars have been fought over lesser distinctions.
As it happens, “misbegotten” may be the most appropriate term available to describe today’s Supreme Court. After all, since 1988, Republican presidential candidates have won the popular vote in presidential elections—the only consistent measure of national voter intent—just once, when George W. Bush was reelected in 2004 after a period of national unification following the September 11, 2001, terrorist attacks. In every other presidential election (1992, 1996, 2000, 2008, 2012, and 2016), the Democratic candidate won more votes than the Republican candidate. And now, still another minority-elected Republican president stands on the verge of consolidating a five-vote hard-right majority on the nine-member Court. If the last judicial term was anything to go by, that majority will hold positions well to the right of the rest of the country on most nationally polled issues.
How did the Republicans manage this? Arguably, it all started the year before the 1992 election, when then-President George H.W. Bush (who, in fairness, actually had won a popular-vote majority in 1988) nominated Clarence Thomas to replace outgoing Justice Thurgood Marshall. In the years since, considerable evidence has accumulated that Thomas acceded to that seat by committing perjury during his Senate confirmation hearings.