by Rod D. Martin
October 8, 2018
I read a paragraph of a Wall Street Journal piece this morning, and found it puzzling. Here it is:
The confirmation also presents Chief Justice John Roberts with a considerable challenge, report Brent and Jess Bravin. The three-month battle to fill the seat vacated by Justice Anthony Kennedy cast the court in a political light to a degree unseen since Bush v. Gore, the 5-4 ruling that decided the 2000 presidential election. Now the chief justice has to steer through the political turbulence that threatens the court’s legitimacy.
Why puzzling? Two reasons.
First, if someone questions the “legitimacy” of the Supreme Court, does that in any way reduce its power? Was the Court “legitimate” in deciding Dred Scot? No. But was its power reduced in any respect as a result? No. And likewise Plessy v. Ferguson, or a whole host of other bad decisions. Even if we say that illegitimate decisions themselves in some way delegitimized the institution itself (and they did not), they certainly did not change the Court’s ability to shape the nation, for generations if not forever.
Perhaps there will be another Civil War as a result of Brett Kavanaugh. But that’s a bit hard to see, since even Dred Scot did not provoke the one we had: indeed, in Dred Scot, the Democrats got their way.
Even in the case mentioned in the Journal’s story — Bush v. Gore — did those who thought the case illegitimate stop taking cases to the Supreme Court? Did they stop asserting the legitimacy of cases like Lawrence v. Texas or Obergefell v. Hodges just because they didn’t like Bush v. Gore?
No. No they did not.
This idea of “threatening the Court’s legitimacy” is plainly ridiculous. It is code for “the Court now needs to give leftists their way on some cases they wouldn’t otherwise, so Democrats will feel listened to.” It’s the same argument, albeit stated differently, as the one we’ve heard for the last two weeks: that an unsubstantiated allegation against Kavanaugh himself requires that we abandon him, maybe even impeach him from his current seat, so some will “feel” better. It is as if the Journal thinks that by politicizing the Court with a few leftwing decisions it would not normally make, the Court will somehow be less…political.
But second, I’d go one step further. I would contend that the Supreme Court has for generations arrogated to itself unconstitutional powers it should not have wielded, and subverted the Republic by usurping the constitutional prerogatives of the elected branches and of the states. Indeed, the left is not concerned about the prospect of Justice Kavanaugh because they think him a gang rapist (they were very clear and vocal about their intent to stop him “by any means necessary” weeks before anyone knew of such convenient allegations). They are concerned that he — along with the first outright conservative Court majority since 1937 — might see things the way I just stated them.
Seen that way, I would suggest that questioning the Court’s legitimacy all these decades is a very good thing, one which that new majority should engage in at every opportunity. Is the Court itself legitimate? Of course. But is its overreach legitimate? Absolutely not, no more than Dred Scot or Plessy.
The Journal should not be worrying about whether the Constitution’s own political process for selecting justices might seem, well, political. The Journal should be worrying about whether a new Court majority might finally reflect the will of the people to reign in the powers of the nine unelected dictators, not least by actually allowing the people — through their elected representatives, acting politically as elected representatives do and must — to rule themselves.
That, today, is a radical thought. But it is certainly the position of the Founders. And it would be healthier if we took that position on the “legitimacy” of the Court rather than the Journal’s, or the mob’s.
UPDATE: To its great credit, on Oct. 15, 2018, the Journal more than redeemed itself in this excellent editorial, “Who’s Attacking Political Norms Now? Democrats Target the ‘Legitimacy’ of the Court”. Take a moment to read it.