Brett Kavanaugh is now Justice Brett Kavanaugh, and we are already being treated to claims that his ascension to the Court has rendered it “illegitimate.” Why? Well, mostly because Brett Kavanaugh is an originalist, and, as the London Times puts it, because his “appointment will let US right wield unprecedented power over Supreme Court.”
For as long as I live, I will never understand this way of looking at the Court. For a start, it is unclear to me why the press implies that it is a historical problem when “conservative” justices form a majority, but not when the opposite is true. This is not the first time in American history that the Court has been lopsided in its approach to the law. And if being lopsided is a problem, then surely the Court was problematic in other eras? Reading the many pieces decrying its “shift,” we might ask whether the Court was “illegitimate” when FDR had appointed seven of the nine justices and, magically, they began upholding whatever he wanted, and whether the Court was “illegitimate” when Earl Warren abandoned any pretense at following the law and, in the words of the decidedly non-conservative Professor Tushnet, spearheaded rulings that “were philosophical, political, and intuitive, not legal in the conventional technical sense”? And then we might ask: If not, why not?
That to one side, critics’ maniacal focus on preserving a “swing vote” demonstrates clearly that they do not understand what the Court does. The Court’s job is to neutrally uphold the law — whether that law be in the form of statute or the Constitution itself. In this context, the concept of a “swing vote” makes little sense. Justice Scalia asked, “What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we’d like it to say?” We might ask in concert, “What in the world is a swing vote? A judge who mediates between the people who are right and the people who are wrong?” Ironically enough, it is the people who are making this argument — not those who reject it — who are “politicizing the Court.” If, like me, you believe that originalism is the only legitimate approach precisely because it removes politics from interpretation, then the more originalist judges you see, the less political the Court is likely to be. If, like Kavanaugh’s critics, you believe the opposite — that is, you think that the Court must represent the “will of the people” — then you cannot help but politicize it, and to the point at which ends up as just another legislature. If that’s what you want to do, then fine. But please don’t pretend that you’re concerned for its impartiality, or that the other “team” getting a turn represents the end of all that is virtuous and just.