If one intends to review this post, but has not yet Part I (which is immediately below), I would start there 🙂.
8. A number of pundits have intoned over the last weeks that Justice Kavanaugh will have a “major impact” on American jurisprudence for “the next 30 or 40 years.” I’m not so sure. The nominee’s baldly partisan performance, as noted in Part I of this post, has cast the Supreme Court as merely another partisan institution of government. Every American should hope that this impression – and any reality underpinning it – are quickly dispelled. However, I offer a couple of unintended consequences that might result from the current tarnish upon the Court’s nonpartisan image:
The first, in the near term, is Chief Justice Roberts’ reaction. As many are aware, Supreme Courts of various periods are identified by the names of their Chief Justices: the “Warren Court,” the “Rehnquist Court,” etc. I would offer that the history of the Court shows that renowned Chiefs have sometimes been more focused on the reputation of their Courts than they were the outcome of any particular case. If, as seems likely, the Chief Justice doesn’t want the legacy of his Court to be one of rank partisanship, I’m wondering whether he might not become a swing vote – i.e., that to regain an impartial image for the Court, he might support liberal positions on some matters (such as abortion cases) rather than follow what might be his natural inclination. Conceding that this suggestion is pure speculation, I do offer one point in its support: his providing the fifth vote (with the four liberals) to uphold the substance of the Affordable Care Act – on a rationale neither seemingly at the core of the parties’ legal arguments nor aligned with the reasoning espoused by the liberals. One might suppose that the Chief Justice didn’t want his Court striking down the signature legislation of a duly-elected President and Congress, and crafted a legal argument to effect that result.
There is a second consequence that might arise in the longer term from any enduring popular impression that the Court is politicized: a liberal recasting of the structure of the Court. The Constitution does not specify the number of Supreme Court Justices. Congress sets the number. The number of Supreme Court Justices set by Congress ranged from six to ten during the nation’s first 80 years; the current arrangement of nine Justices was set at nine pursuant to the 1869 Circuit Judges Act.
I suggest that demographics may not abide conservative rulings by the Supreme Court over the length of Judge Kavanaugh’s projected term. Every day, our voting population has more now-young and now-minority people inclined to view cultural issues – be they gender, race, religion, or other — as Democrats do, and fewer people that view those issues as Republicans – and Justice Kavanaugh – do. A study released in April by the admittedly-liberal Center for American Progress projects that by 2036, 40% or more of eligible voters in as many as 14 states – including Trump-won states Georgia, Texas, Arizona, Alaska, Florida, Mississippi, and Louisiana – will be non-white. In a polarized society in which a growing majority of citizens could feel that their views and rights are being thwarted by what they perceive to be partisan conservative judges, it seems not only possible but perhaps predictable that a Democratic President and a Democratic Congress will simply pass a statute expanding the number of seats on the Supreme Court, and thereafter nominate and confirm liberal judges to those posts so as to neutralize the votes of Justice Kavanaugh and any other surviving conservatives.
As virtually all of us recall from our early schooling, what I’m suggesting could occur was proposed by Franklin Roosevelt in the 1930’s, due to his frustration with the Supreme Court’s early vitiation of New Deal laws. The proposal ended with the most stinging political defeat of FDR’s presidency. Even the President’s fervent supporters were outraged that he was attempting to tamper with another branch of government. I would suggest that the reaction might be different within the next 20 years if a popular impression of the Supreme Court as a partisan institution takes hold. Roosevelt’s proposal met with widespread castigation because in those days – whether correctly or not – the Supreme Court was viewed by the populace as above the fray, indeed, sacrosanct; unless the damage done to the Court’s image by Judge Kavanaugh’s performance is rectified, it doesn’t strike me as that long a reach to suppose that a majority of citizens might within the next score of years come to favor a law that they believe is needed to provide them justice.
9. Finally, we come to James Bond, and his projection as to which party will be helped in the midterms by the outcome of the Kavanaugh battle. Over the last few days, commentators have pontificated at length as to which party will be more inspired by the result of the struggle – the Republicans by their victory, or the Democrats by their defeat. While I might feel otherwise if the mid-terms were to be held this Tuesday, I submit that ardor is cooled by victory, and inflamed by defeat. I believe that the fictional 007 would feel the same. In Moonraker, after relating Bond’s victory at cards over Hugo Drax in the seemingly harmless early contest between the British Secret Agent and the villain that formed the opening vignette of every classic Bond novel, Ian Fleming wrote:
“Before [Bond] slept [that night] he reflected, as he had often reflected in other moments of triumph … that the gain to the winner is, in some odd way, always less than the loss to the loser…”