The founding fathers were ingenious. More than anything, they dreaded a man on horseback, like the English king, who might seize absolute power. So they created a Constitution that has served us well for over 220 years. More important than the Bill of Rights, which only got into the document by amendment in 1791, the founders devised a delicate system of checks and balances so that the majority, which would rule, could not tyrannize the minority. The 16th-century Scottish scholar George Buchanan observed that we must rely on the institutions of a free society to push back against those who would govern “not for their country but for themselves, who take account not of the public interest but of their own pleasure.” With the probable addition of Judge Brett Kavanaugh to replace the retiring Justice Anthony Kennedy, the Supreme Court will not be one of these institutions.
Fearing the dangers of populism, the founders took great pains to filter the government from the people. There was no direct election of the president, a situation which exists to this day. There was no direct election of senators. The Senate was owned by the state legislatures. This feature remained until the early 20th century.
Because of a historical accident, there has now been a grave unintended consequence of the exquisite framework the founding fathers devised. A reactionary president, elected by a minority of the people, who has no meaningful pushback from the Senate, which his party controls by one vote, is able to chart the course for the Supreme Court for generations to come. As I pointed out in my 2016 book, Supremely Partisan, the Supreme Court is a political court making partisan decisions left and right based on preferred policy choices of the justices that have nothing to do with the Constitution.
This is plainly not what the founding fathers intended. Churchill in his “iron curtain” speech smartly articulated the proper role of the courts in a self-governing democracy: “Courts of justice, independent of the executive, unbiased by any party, should administer the laws which have been received by the broad assent of large majorities or are consecrated by time and custom.” Courts such as these, said Churchill, would be “one of the title deeds of freedom which should lie in every cottage home.”
In the past, the Court has been political, and it has been polarized, but there have been notable exceptions. The Burger Court unanimously decided United States v. Nixon, and established the proposition that no one, including the president, is above the law. Three Republican-appointed justices (Burger, Blackman, and Powell) voted with four liberal justices in Roe v Wade to establish a woman’s right to abortion in the first trimester of pregnancy. Roe v. Wade has now been “consecrated by time and custom,” and Kavanaugh is unlikely to overrule such a “super precedent.”
But the recent raft of 5-4 decisions of the Roberts Court (with Justice Kennedy voting with the majority) makes clear beyond doubt that a reactionary, uncompromising political Court is here to stay. The Court’s lurch to the right will continue “not in single spies, but in battalions.” And with Kavanaugh on the bench, we are virtually ensured that there will be a reactionary Court for generations to come.
Harvard law professor Jack Goldsmith, a Justice Department official in the George W. Bush administration, told The Washington Post that Kennedy’s retirement is “the most consequential event in American jurisprudence at least since Bush v. Gore in 2000 and probably since Roe v. Wade in 1973.” And indeed it is.
Kennedy was conservative on many issues, including business regulation and campaign finance, and on those issues, his departure will have little immediate effect on the 5-4 conservative-to-liberal balance. But Kennedy, for whom Kavanaugh served as law clerk, was the swing vote on other matters, including abortion, gay rights, and affirmative action. On these issues, his departure could quickly lead to a totally transformed legal landscape.
Writer Jeffrey Toobin was quick to tweet the following about the effect of Kennedy’s retirement: “Anthony Kennedy is retiring. Abortion will be illegal in twenty states in 18 months.”
Maybe. And it is not only abortion. Kennedy had voted or expressed inclination to vote with the liberals on a host of additional issues, the resolution of which would protect the vulnerable and disadvantaged in society, including:
- Capital punishment and solitary confinement.
- Consumers’ digital privacy rights.
- Partisan gerrymandering.
- Allowing the EPA to fight climate change.
Kavanaugh, like Kennedy, is a Roman Catholic, and the religious balance on the bench will, oddly, remain at six Catholics and three Jews. If Kavanaugh follows in Kennedy’s footsteps, and becomes the “swing” justice, the Court might become the Kavanaugh Court, rather than the Roberts Court. If, however, he votes with his Republican-appointed colleagues on the key partisan issues, the Supreme Court, the only branch of government that is conceived as independent of the political process, will be unwilling or unable to push back against the executive state for decades to come. And this is an outcome that the founding fathers never intended.