Kavanaugh’s puns test Americans’ trust in Supreme Court

Four years ago, Justice Brett Kavanaugh survived one of the most messy and combative Supreme Court nomination battles in American history. Ultimately, his supporters, including the two senators from Texas, asked the American people to trust him and trust his judgment that he was honest.

It was too much to ask. It’s obvious now. Americans’ crisis of confidence in the Supreme Court, apparently the only institution we still trusted, is of course bigger than a single judge. But Kavanaugh, with his precarious rise and pre-confirmation assurances that have now proven to be spurious, illustrates why.

At stake is the legitimacy of the court, loyalty to the rule of law, and the simple belief that smart people in black robes who enjoy lifetime appointments to interpret the US Constitution will conduct themselves with integrity. The aftermath of last week’s seismic precedent break in the overturning of Roe v. Wade will affect all Americans, even those who celebrated their long-awaited victory as a kind of justice.

In 2018, Kavanaugh was confirmed 50-48, the narrowest margin for successful Supreme Court appointment since 1881. The vote hinged on two issues of confidence: First, he angrily denied having convinced allegations of sexual misconduct from a young age. Second, he sought to reassure senators and their constituents who feared the court was about to dispense with Roe and end the constitutional right to an abortion that had resisted repeated challenges since 1973.

On this last question, Kavanaugh told senators that Roe was a precedent worthy of respect, exactly the kind of vague statement that many judges make when pressed by senators for something they should never give: an explicit prediction of how which they will decide in future cases. But Kavanaugh didn’t stop there. “One of the important things to keep in mind about Roe v. Wade,” he said, “is that it has been reaffirmed many times over the past 45 years.” He called a pivotal case that affirmed Roe’s Casey v Planned Parenthood knot “precedent upon precedent.”

Honesty questioned

Despite all that, Kavanaugh added the crucial fifth vote to last Friday’s opinion knocking Roe down. Given that the ruling states that the 1973 decision was “patently wrong” when it was released, many wonder if he misled the Senate when he testified under oath.

We asked one of the senators who voted for Kavanaugh and who supports the Dobbs decision. Republican Sen. John Cornyn of Texas said Tuesday he thinks Kavanaugh was simply trying to sidestep a box no candidate should be pressed into: promising to vote a certain way.

“I don’t think Judge Kavanaugh misled me or the Judiciary Committee,” Cornyn said. “This is an example of two people hearing the same word and coming away with a different interpretation.”

Two of Cornyn’s colleagues whose votes proved necessary for Kavanaugh’s confirmation had very different reactions. The Senate’s most conservative Democrat, Joe Manchin of West Virginia, and, arguably, its most progressive Republican, Susan Collins of Maine, each said Kavanaugh had privately assured them of his support for Roe as precedent.

Collins, who posted a transcript of his notes from their meeting, insisted that Kavanaugh pointed out to him that Roe was “the established law,” giving him confidence that even a conservative majority would not overturn the decision. Both Manchin and Collins said they were cheated.

If Kavanaugh believed what he said in 2018, why didn’t he join Chief Justice John Roberts last week in backing Roe? Roberts joined the majority opinion in Dobbs to enforce Mississippi law limiting abortions to the first 15 weeks of pregnancy. But he issued a second opinion rejecting the unnecessary 5-4 majority vote to overthrow Roe and Casey, which he called “a serious shake-up to the legal system – however you view these cases”.

Consequences

Observing the Supreme Court in person, something few Americans have been able to do since COVID, is understanding how much everything hinges on faith in its rulings and in the justices themselves. The main gates to the courtyard are 17 feet high, made of bronze and weigh 13 tons. On either side of its main entrance are large statues by sculptor James Earle Fraser. To the left is a female figure known as the Contemplation of Justice. On the right is a male figure known as the guardian of the law. Inside, to the east of the Great Chamber, statues of the world’s great legislators stand in a kind of silent majesty. Here you will find Moses, Confucius and Solon, the statesman and poet credited with laying the foundations of Athenian democracy.

These impressions, along with all the archaic rituals of court operations, are designed to lend authority to the one branch of the American government whose power—even its usefulness—rests entirely on its words.

The judges have already ruled controversially. Presidents from Thomas Jefferson to Franklin Roosevelt to Barack Obama have sought to berate and sometimes even reshape the court. But these disputes have centered on the decisions taken by the judges, their perspectives, their interpretations – matters of subjectivity. When we cannot trust the word of a judge, it poses a more serious threat to the legitimacy of the court.

Some on the left are calling for Kavanaugh’s impeachment. Meanwhile, some are demanding the censure of Judge Clarence Thomas, or at least his disqualification from any case involving the 2020 election, given the prominent role played by his wife in advising President Trump in his plan to remain illegally in the country. power.

What we can say is that these appeals bear witness to a crisis of confidence in the Court unprecedented in our recent memory. Only once before has a judge been impeached, in 1804, when Jefferson persuaded the United States House to make accusations of partisanship and of having “behaved in an arbitrary, oppressive and unfair manner” against Judge Samuel Chase, a Federalist and one of the first signers of the Declaration of Independence. He was acquitted in the Senate. Judge Abe Fortas could have been impeached in 1969 if he had not resigned after the discovery of financial irregularities.

To understand the consequences of Kavanaugh’s apparent cover-up, start with a simple question of whether we can trust what he said or wrote.

Since a leaked draft of the Dobbs opinion emerged earlier this year, many feared its overturning of Roe would provide a pathway to overturn other court precedents dealing with privacy, including those involving adult law. married couples to contraception and the right of homosexual adults to marriage. and sexual intimacy. In its majority opinion, the court said nothing in the Dobbs decision should indicate that those rights are in jeopardy. Kavanaugh wrote separately to make the same point. Nor, he said, would it be in favor of laws restricting the movement of residents of states where abortion is illegal to seek abortion care in a state where it is not.

These are important assurances, but what credibility should they be given, especially given a concurring second opinion, written by Judge Thomas. Analyzing his words carefully, Thomas agreed that Friday’s decision did not eliminate those other rights, but stressed that the court should override them in future cases. They were all decided as badly as Roe, wrote Thomas.

When these cases make it to court, should we, again, trust Kavanaugh’s word that he wouldn’t go that far?

Yet another damaged institution

Support in Congress is weak; and have been for years. But what seems new in America is how widespread our distrust of institutions has become, doubts about everything from our membership in NATO to the lack of partisanship in the CDC. Even cherished ideals, such as the peaceful transfer of power or the right to vote, have come under alarming fire. The court has been an outlier and, along with the justice system as a whole, something Americans have tended to trust.

It changes. A Gallup poll released this week shows just a record high of 25% of Americans trust the courtcompared to 40% just two years ago.

The court has gone through crises of faith before, such as after its 5-4 Bush v. Gore decision intervening in the 2000 presidential election, an opinion that at least one judge, Sandra Day O’Connor, has come to regret. Roberts has worked hard to lead the court since then, seeking to emphasize areas of agreement where possible. His efforts to keep the faith in the high court were challenged by successive controversies. In 2016, the GOP-led Senate even refused to hold a confirmation hearing for President Obama’s pick Merrick Garland, then brazenly rushed to confirm Amy Coney Barrett to replace liberal icon Justice Ruth Bader Ginsburg. in the days following Trump’s defeat in the 2020 election.

Nearly a quarter century ago, Judge John Paul Stevens feared that the court’s decision in the Bush v. Gore case would make Americans doubt the court’s political independence., wrote:

“It is trust in the men and women who administer the justice system that is the true pillar of the rule of law,” Stevens wrote.

This time the damage is different. It’s not just the questions about the judges’ ideological or partisan biases – a charge leveled enough against many who have worn the black robe over the years. At least in the case of Kavanaugh, the question is much more fundamental: Can we believe that what he says or writes is true?

The answer, for now, has to be no – not completely. And that, on its own, is devastating.


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