What Kavanaugh is wrong about the Supreme Court and politics

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In Dobbs v. Jackson Women’s Health Organizationwhere the Supreme Court overturned Roe vs. Wade and eliminated the constitutional right to have an abortion, Justice Brett M. Kavanaugh issued a concurring opinion putting a new spin on an old precept. He wrote that where, as in the case of abortion, the text of the Constitution is silent and therefore neutral, the court must also be neutral and leave the matter to the democratic political process.

But history suggests otherwise. In fact, it shows that the court never followed such a rule and, in fact, it could have led to much worse results in some cases.

In the 18th century, until the time of the Constitutional Convention of 1787, judges, like other civil servants, were merely government officials who made legal and political decisions. In the mid-1760s, judges in several colonies declared the British Parliament Stamp Act null and void and unenforceable. Judges in one county in Virginia, for example, ruled that the Stamp Act “does not bind, affect or affect the inhabitants of this colony, so far as they consider it unconstitutional.” In the midst of a dramatic political dispute over Parliament’s policy to tax the settlements, these decisions had no doctrinal basis on which lawyers could agree and so became part of the political dispute.

Independence did not elevate judges above the political thicket. Instead, they quickly weighed in on the validity of legislation determining the rights of loyalists who had supported Britain during the American Revolution. Again, their decision was swept aside in the political debate over what should happen to loyalists because there was no widely accepted precedent for how to treat supporters of an established regime in revolutionary conflict and the public was sharply divided.

As late as 1786 in Trevet v. Weed, the Rhode Island Supreme Court decided to declare unconstitutional a law making depreciated paper money legal tender for the payment of debts. The justices embroiled themselves in an intense dispute that had been waged through the political process and the press, invalidating what the winners believed was a final legislative decision.

At the Constitutional Convention, a question arose about how to ensure consistency between state and federal laws. James Madison proposed that states submit their legislation to Congress, which would have the power to veto it. But his fellow delegates rejected his proposal for a Supreme Court review of the legislation. During the debate on the issue, no one suggested that Congress would determine the validity of state law any differently than the court would. Indeed, in discussing Madison’s proposal, Alexander Hamilton referred to members of Congress who would determine whether to strike down state law as “judges”; he saw no distinction between Congress as a political institution and the judiciary as divorced from politics.

In short, at the foundation, the idea that law was separate and distinct from politics had not yet emerged. But everything changed Marbury v. Madison in 1803.

Before President John Adams left office in 1801, he appointed a large number of Federalist judges. The new president, Thomas Jefferson, and many fellow Democratic-Republicans worried that these justices would behave politically — as justices had traditionally done. Jefferson himself was studying law at the time of the Stamp Act controversy and was likely aware of at least some of the cases ruling the act unconstitutional. He understood the political motivations behind decisions and how decisions could be overruled by politics.

In the chaos at the end of Adams’ term, Acting Secretary of State John Marshall failed to hand over the commission of one of the judges, William Marbury. When Marbury sued to have his commission returned after Jefferson took office, the Supreme Court found itself in the midst of a political controversy. He had to decide whether Adams appointees, some of whose positions had been abolished by Congress through the 1802 legislation, were entitled to their seats. The court’s decision in marbury suggested they were.

But Chief Justice John Marshall understood that Jefferson and Congress, with broad public support, would disobey any court order allowing the judges to sit. To rule in favor of the judges therefore risked permanently weakening the new court, since the political branches would simply ignore its decisions and thus show how little real power the court had. Marshall therefore said he would only decide questions of law and not deal with political disputes such as whether to sit on Adams’ judges. Basing its decision on marbury and a related case on narrow procedural grounds, the court avoided the traditional political behavior of 18th century judges.

Marshall’s determination to steer the court away from political confrontation contrasted with his successor as Chief Justice, Roger B. Taney. Infamously, in the 1857 case of Dr Scott v. Sandford, Taney embraced Southern political arguments on slavery. The decision fomented immense opposition that contributed to the election of Abraham Lincoln in 1860 as president, which, in turn, helped push the United States toward Civil War.

Dred Scott’s opinion of Taney left voters with no bones of contention. Instead, he chose a side. As a result, the Chief Justice fueled political conflict over slavery, instead of providing a solution to the problem. When the political process also failed to resolve it, all that remained was a call for violence.

Normally, the Supreme Court can avoid trouble, as Kavanaugh urges, by not challenging, as Dred Scott did, the views of a majority of Americans. History suggests, however, that sometimes the court must take a political stance because the alternative is worse. Two cases are particularly noteworthy.

Brown v. Topeka Board of Education was a. It was becoming clear to most Americans by the 1950s that legally mandated racial segregation had to be ended, preferably as soon as possible. Because of the committee structure of Congress and the filibuster in the Senate, which gave Southern legislators inordinate power, it was also clear that the political process would not end it. Only the Supreme Court could do that. The judges knew that ending segregation would produce deep political opposition, but they made the decision to do so nonetheless – a judgment that almost everyone now agrees was right. Although their decision provoked fierce backlash and disobedience in the South, including calls to neutralize the court in some way, it also paved the way after nearly a century for progress towards carrying out the intentions of the equal protection clause of the 14th Amendment.

Bush versus Gore was another, albeit very different, case in which the court intervened in a political dispute, this time over the results of an election. That could have left the matter under the jurisdiction of the Florida Supreme Court, which would likely have ruled in favor of Vice President Al Gore. It could have avoided accusations that Republican-appointed judges would hand over the presidency to Republican nominee George W. Bush. Still, history has proven the decision to end the recount in Florida wise for three reasons.

First, the evidence indicated that Bush had won Florida, albeit by a narrow margin. Second, had the court stayed out of the case, the lack of clarity about the election results might have persisted until the House of Representatives ruled on the matter in mid-January, which would have produced political chaos. Finally, the House would probably have chosen Bush anyway. Although all of these facts were unclear at the time, the court retrospectively prevented political chaos and supported the democratic political process.

These cases reveal how problematic and ahistorical Kavanaugh’s attempt to craft a hard-and-fast rule on non-intervention in political conflict is. Especially when, as is perhaps the case in Dobbs, a decision perceived as political arouses the ire of a majority of Americans, it makes sense to stay away from politics. Otherwise, the court risks weakening its legitimacy and power, and pushing the nation into chaos.

But the court can’t always do that. The difficulty of changing the Constitution puts pressure on the court to maintain, as Judge John Marshall Harlan wrote in dissent in Poe v. Ullmana political balance “based on what history teaches are the traditions of which it [the country] developed as well as the traditions from which it broke. The stature of the court and the peace of the nation depend on judges making judgments that are not inconsistent with the directions in which civil society is moving — even if that means risking that many Americans perceive them as political. It remains to be seen whether the majority view that Kavanaugh joined Dobbs does exactly that, but it is clear that his reasoning misinterprets the lessons of history.

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