Ayear after the Trump-inspired insurrection at the Capitol on 6 January 2021, the United States experienced a less obtrusive coup d’état: the hustled retirement of Justice Stephen Breyer, the oldest of the three remaining liberals on the Supreme Court. The prematurely leaked announcement in late January took Breyer himself by surprise. But the leak wasn’t any more of a breach of constitutional decorum than the insistent lobbying that preceded the reluctant retiree’s decision. Breyer’s liberal allies had the noblest motives for expediting his departure. America’s Supreme Court justices have lifetime tenure, and sometimes that is a literal description: the ultra-conservative Chief Justice William Rehnquist died on the job in 2005 at the age of eighty, and so did his ideological ally Antonin Scalia in 2016, aged 79. More recently, the court’s indefatigable liberal standard-bearer, Ruth Bader Ginsburg, died in post aged 87, a mere six and a half weeks before the 2020 presidential election. Had Ginsburg lived four months longer, Joe Biden would have been able to nominate her successor; instead that privilege fell to Donald Trump. To avoid something like this happening again, political pressure grew on the 83-year-old Breyer to retire while the Democrats hold the presidency and fifty seats in the Senate, whose members confirm the appointment of presidential nominees to the court.
The US Supreme Court assumes a more exalted role in government than its namesake in the UK. Unlike its British equivalent, it can strike down laws it finds unconstitutional. Events in America’s recent history have magnified the court’s profile; its partisan contortions in favour of George W. Bush in the case of Bush v. Gore decided the 2000 presidential election. But nothing has done more to push the court into the public eye than abortion. In Britain abortion was legalised as a result of David Steel’s Abortion Bill of 1967, but in the US abortion rights have never had democratic legitimacy of this kind, resting instead on the 7-2 decision reached by nine male judges in Roe v. Wade (1973). The justices managed to establish abortion rights in the absence of legislative sanction by way of substantive due process, the doctrine that the ‘liberty’ protected in the ‘due process’ clause of the Fourteenth Amendment confers a wide spectrum of rights not specified in the constitution, including a right to privacy. Some critics argued that ‘due process’ could never be construed as substantive: it was, by definition, procedural. The distinguished jurist John Hart Ely considered substantive due process an oxymoron, just like ‘green pastel redness’. Some conservatives asked whether abortion rights were conjured out of judicial subjectivity and caprice.
Strangely, in retrospect, at the time of Roe v. Wade abortion was not a partisan issue. The opinion in Roe was written by Harry Blackmun, a Nixon appointee, and supported by four other justices appointed by Republican presidents. In dissent were Rehnquist, another Nixon appointee, and Byron White, a socially conservative Democrat, who had been nominated to the court by John F. Kennedy. Over time, however, the growing influence of evangelical moralism in Republican politics meant that opposition to Roe emerged as a litmus test of party loyalty, and the composition of the court became a matter of heated public interest.
For a long time, the Senate – once a patrician club whose members looked down on the vulgar partisanship found in the House of Representatives – steered clear of demagoguery and militancy. The uncompromisingly anti-abortion Scalia, an adherent of Catholic natural law doctrines and the father of nine children, was confirmed with a 98-0 vote by the Senate in 1986; and in 1993 his ultra-liberal counterpart Ruth Bader Ginsburg – a champion of women’s right to choose, though not of Blackmun’s reasoning in Roe – received a similarly overwhelming endorsement, 96-3. But between these smooth confirmations two brutal confirmation battles – for Robert Bork, rejected by the Senate in 1987, and for Clarence Thomas, narrowly confirmed in 1991 – presaged the hyper-polarisation of the present-day confirmation process.
Bork and Thomas, like Scalia, espoused originalism, a reactionary trend in American jurisprudence whose followers try to recover either the original intent of the framers of the late 18th-century constitution or the meaning the document would have had for the generation that ratified it. This leaves no scope for the notion of a ‘living constitution’ which evolves in response to the changing practices and beliefs of American society. An adherent of the living constitution might conclude, for example, that the ‘cruel and unusual punishment’ prohibited by the Eighth Amendment wasn’t a historically fixed standard but depended on shifting notions of morality and common decency. Originalists don’t see things this way; and the emergence of this palaeoconservative fad in the 1980s generated huge anxiety that its proponents wanted to replace late 20th-century freedoms with 18th-century restrictions.
Ted Kennedy set the tone in a set-piece speech in the Senate, repudiating Reagan’s nomination of Bork: ‘Robert Bork’s America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids.’ Bork made matters worse. A former Yale law professor, he treated his Senate hearings as a seminar on originalism, which served only to rile the senators, irritated by his condescension. The Senate decisively rejected him by 58 votes to 42.
Thomas’s nomination – an atypically conservative Black judge replacing a very liberal Black justice, Thurgood Marshall – also provoked considerable outrage, but it fell short of the vituperation directed against Bork. Liberal opposition to Thomas was tinged with embarrassment: blocking the elevation of only the second Black justice to the court was not a good look. Further discomfort was to come during the Senate hearings, when a former colleague, Anita Hill, accused Thomas of sexually suggestive comments and advances. Thomas – who scraped in on a 52-48 vote – described the media firestorm as ‘a high-tech lynching for uppity Blacks who in any way deign to think for themselves’.
The televised hearings on the Bork and Thomas nominations left scars, on both parties. Republicans regarded Bork as a martyr and Thomas as the victim of muckraking. Democrats felt that the Senate Judiciary Committee had not treated Anita Hill with respect; that a vote had been taken on Thomas before a proper investigation of her allegations had been conducted; and that, as a result, a known sexual harasser had gained a lifetime appointment to the court. The Thomas hearings were also an albatross for Biden, then chair of the Senate Judiciary Committee, who had conspicuously failed to rein in the white, male Republican senators intent on demolishing Hill’s story.
After Bork, the lesson was learned: Supreme Court nominees should stick to small talk with the Senate, and steer clear of controversial areas of jurisprudence. And the White House saw that to avoid a repeat of the controversy that nearly sank Thomas, it was vital to do proper background checks on potential nominees. But was due diligence limited to adult misdemeanours? Until Trump’s nomination of Brett Kavanaugh in the summer of 2018, a candidate’s high-school years belonged safely beyond the horizon of senatorial scrutiny. Inevitably, Jackie Calmes’s Dissent devotes considerable space to the trauma experienced by Christine Blasey Ford as a teenager, assaulted on a bed, she claims, at the hands of a drunken Kavanaugh and his friend Mark Judge. However, the human drama of Ford’s story, her treatment by the Senate Judiciary Committee and Kavanaugh’s bizarre counter-testimony are set inside a bigger picture: the concerted attempt over several decades by the Federalist Society, an organisation of right-wing lawyers and law professors, to reshape the judiciary as a reliably conservative force in the culture wars. Democrats have labelled Kavanaugh – a member of the Federalist Society since 1988 – the ‘Forrest Gump’ of American conservatism, always in the vicinity at moments of high drama: assisting the independent prosecutor Ken Starr’s obsessive pursuit of the Clintons in Whitewater and Monicagate, and flying down to Florida as part of Bush’s legal team during the disputed election of 2000. But in late September 2018 his career appeared to stall. Ford’s testimony to the Senate Judiciary Committee was riveting and highly credible. At best, it seemed possible that both Ford’s allegations and Kavanaugh’s denials were grounded in truth, that Kavanaugh had been so drunk he had completely forgotten the incident.
In the wake of Ford’s impressive testimony, Kavanaugh was told that he needed to perform during the televised hearings for an audience of one in the Oval Office. But instead of the punchy aggression Trump admires in a man, Kavanaugh displayed his inner teenager – whiny, entitled and snarky to grown-ups. Calmes’s disgust at Kavanaugh’s performance is mixed with disbelief: ‘A nominee was auditioning for a job on the highest court, one for which core criteria are judicial temperance and nonpartisanship, and displaying the opposite traits.’ The hearing was punctuated with his cry-baby outbursts, ‘smart-alecky’ responses and in-your-face contempt for Democrat senators. When Amy Klobuchar, the senator from Minnesota, asked him about his drinking as a young man, the 53-year-old judge almost instinctively assumed a posture of teenage belligerence:
Klobuchar: So you’re saying there’s never been a case where you drank so much that you didn’t remember what happened the night before, or part of what happened?
Kavanaugh: You’re asking about, you know, blackout. I don’t know. Have you?
Klobuchar was stunned, and she wasn’t alone. But it didn’t matter. Mitch McConnell, the Senate’s hyper-partisan Republican majority leader, had already decided, declaring himself ‘stronger than mule piss’ in support of Kavanaugh’s confirmation.
The Senate delayed its vote for a week while the FBI went through the motions of investigating Ford’s claims. But its bosses in the Republican administration had no interest in uncovering the truth. The FBI was also reluctant to assess the allegations of Deborah Ramirez, a Yale contemporary, who said that a drunken Kavanaugh had waved his penis in her face at a party. Regardless of the sexual harassment claims, Calmes notes that many of Kavanaugh’s contemporaries believed he had lied under oath about the scale of his drinking as a young man. In the event, 49 Republicans and the conservative West Virginia Democrat Joe Manchin saw Kavanaugh through the Senate on a 50-48 vote.
Although himself a staunch Republican and social conservative, Chief Justice John Roberts faced a dilemma. Not only was his Supreme Court, with its new conservative majority, markedly out of step with a country where Republicans had won the popular vote only once in the previous five presidential elections, it also included two justices who, facing credible sexual harassment allegations during the confirmation process, had – it seemed to many – perjured their way onto the court. Its legitimacy was now in question, and with it the idea that the rule of law could be distinguished from partisan preferences.
Roberts’s growing estrangement from the court’s hard right is one of the central strands in Linda Greenhouse’s account of the dramatic year for the Supreme Court which saw the death of the liberal feminist Ginsburg and her replacement by Amy Coney Barrett, an ultra-conservative Catholic and mother of seven (two adopted), who belongs to a fringe charismatic renewal movement called People of Praise. Three years earlier, when Barrett appeared before the Senate Judiciary Committee on her nomination to the Seventh Circuit Court of Appeals, liberal indignation got the better of Dianne Feinstein, who told her that ‘the dogma lives loudly within you.’ Judicial candidates since the Bork hearings have remained tight-lipped about Roe; but, as Greenhouse notes, Catholicism has become ‘a proxy for the answer a nominee couldn’t give to the question a president couldn’t ask’.
A far from uncontroversial choice, Barrett was confirmed only eight days before the 2020 presidential election, in which ten million people had already cast their ballots. Memories of the Republican shenanigans in 2016 were still fresh in the mind. When Scalia died suddenly in February that year, McConnell solemnly pronounced that the Senate could not allow Barack Obama to make an appointment to the court during an election year, though the election was then nine months away. He successfully blocked hearings for Merrick Garland, Obama’s nominee. Four years later McConnell – who has stated that the Senate’s constitutional function of providing ‘advice and consent’ in judicial appointments ‘means whatever the majority at any given moment thinks it means’ – rushed through Barrett’s confirmation in the weeks before the election. The living constitution is thriving – if only in the wiles of its most formidable political opponent.
Thanks to McConnell, by the end of his tenure Trump had appointed three comparatively young right-wing justices to the court: Neil Gorsuch (who eventually replaced Garland as the nominee), Kavanaugh and Barrett, of whom Kavanaugh at 57 is the oldest. Given that John Paul Stevens recently served on the court until the age of ninety (he retired in 2010), there is every possibility that future generations will find themselves subject to the rulings of Trump’s judicial picks. The court now has a heavy 6-3 conservative majority.
Roberts understands that ramming through a conservative judicial programme is much less important than bolstering the shaky legitimacy of the court itself for the longer haul. In the 1930s Roosevelt’s New Deal faced judicial obstruction: a recalcitrant Supreme Court saw freedom of contract and laissez-faire economics as fundamental components of American liberty, and struck down activist measures accordingly. Emboldened by his healthy mandate, Roosevelt planned to reform the court, increasing the number of judges from nine to fifteen. Although this provoked an outcry, the court caved under the pressure, jettisoning its small-state principles.
With a faint nod to FDR, Biden last year set up a Presidential Commission to look at Supreme Court reform. Its draft report reviewed various options, including term limits for judges and curbing the court’s power to strike down laws. But Biden, a long-time champion of bipartisan civilities, seems unlikely to favour drastic remedies. Roberts more plausibly fears a future radical Democrat administration bent on reforming an anomalous institution. The court, he seems to feel, shouldn’t be too far out of step with public opinion, which is the reason – possibly against his own deeper inclinations – his was the swing vote that upheld Obamacare, a betrayal that alienated his fellow conservatives on the court.
In the meantime, Biden has nominated Breyer’s replacement, Ketanji Brown Jackson, who would be the first Black woman justice on the court. During Breyer’s last session the court is set to rule on a Mississippi law banning almost all abortions after fifteen weeks of pregnancy. With six conservatives on the nine-person court, Roberts knows that another prudent defection on his part will not be enough to save Roe. But he might entice one of the conservative justices into supporting a less provocative outcome: further hollowing out Roe without explicitly overturning the constitutional right to abortion. If Roe is overruled, 26 of America’s fifty states seem likely to ban abortion. The stakes are high, both for American women and for the long-term legitimacy of the court.
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