Independent Judiciary, RIP

With the Comey Barret vote, Republicans complete their hostile takeover of the Supreme Court

“A lot of what we’ve done over the last four years will be undone sooner or later by the next election,” Senate majority leader Mitch McConnell (R-KY) told the Senate Sunday night as he shoved the Supreme Court nomination of Amy Coney Barrett toward a vote. “They won’t be able to do much about this for a long time to come.”

In the pantheon of snotty quotes from American history, this one will, I predict, have some staying power. It is comparable to Commodore Vanderbilt’s immortal “The public be damned!” or Justice Oliver Wendell Holmes’s callous “Three generations of imbeciles are enough.”

All three are taunts by the powerful, boasts that they can do whatever they choose to those on the outside—workers, consumers, the (supposedly) intellectually disabled. All claim impregnability for rule by a merciless elite. “You count for nothing,” they imply. “We own the present—and we own the future.”

History tends—amid great suffering, to be sure—to give the eventual lie to such brutal fanfaronade. But McConnell is, in one way, correct.

What is about to be done with the Barrett nomination will not easily be undone. Indeed, it will take work, generosity, and creativity to rectify what is happening to the independent judiciary in the United States.

Whatever role the Supreme Court plays in American life in the decades to come—whether it sits as the dead hand of the legal right, poised to strangle progressive legislation and individual rights, or is properly reformed by a Democratic administration—it will never be what it was before. For much of its life, it was flawed but respected arbiter of law and the Constitution, cursed by some but accepted by all.

If We the People accept without serious reform this new marsupial court as it is being contemptuously thrown to us, we do not deserve self-government.

Why equivocate? This rushed, farcical nomination is a direct contradiction of every solemn assurance that McConnell and others in his party gave the nation four years ago, not a bizarre happenstance. It is a page straight out of the playbook of countries like Hungary, Poland, and Venezuela, where a previously independent judiciary has, by fair means or foul, been brought under the authoritarian boot.

If this be incivility, by God, make the most of it.

We lawyers can, in the bleak times ahead, play the parlor game of asking when the idea of independent justice began to disappear. In my mind, the first signs appeared in 2000, when, with a rationale so cynical that it resembles not so much judicial reasoning as an upraised middle finger, the conservative majority on the Supreme Court installed George W. Bush as “winner” of the presidential election. “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election,” Justice John Paul Stevens wrote in his dissent in that case, “the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

We can disagree about which Roberts Court opinions fit into the ensuing downward arc: Citizens United and the other cases that turned politics over to the wealthy and “dark money”; Shelby County v. Holder and other assaults on the right to vote; Janus v. AFSCME and other cases that invented the “First Amendment” attack on unions and worker protections on the job.

But the masterpiece of anti-democratic assault began in February 2016, with the death of Antonin Scalia and President Obama’s nomination of Judge Merrick Garland (a well-liked moderate whom top Republicans had previously promised to confirm) to fill his seat. It was obvious at the time that, whatever happened with Scalia’s seat, the Court had three more very old people on it. Elementary actuarial science made clear a new court would be shaped by the winner of that November’s election. Senate history and confidential norms suggested that, whoever controlled the Senate, President Obama’s nominee should be considered. If there was an argument against confirmation, then (as with the nomination, in June of 1968, of Abe Fortas to be Chief Justice) opponents were free to make their case, and even to filibuster, as they did half-a century ago until Fortas at last withdrew.

This is how the system is supposed to work. Nominate, advise, and consent or not.

But by 2016, the American right—the megadonors, the dark money groups, the Judicial Crisis Network and the Federalist Society—coveted total control of the Court. And so was born, out of thin air, the “rule” that presidents in their final year of office could not nominate a Justice. The pretense was so bald that at times the participants—though aiming at solemn farce—seemed on the verge of cracking up, like comedians in a misfiring skit on “Saturday Night Live.”

The seat was partisan property, McConnell and the Republicans said. Donald Trump joined in: “I think the next president should make the pick, and I think they shouldn’t go forward, and I believe I’m pretty much in line with what the Republicans are saying,” he said on March 16.

This, just to be clear, was the “stolen seat.” It signaled the end of any pretense of normality and marked the Court as a potential Republican governing partner, a target for hostile takeover. That suggestion became explicit when candidate Trump promised that the reversal of Roe v. Wade “will happen automatically, in my opinion, because I am putting pro-life justices on the court.” To underscore the point, Trump released a list of these potential “pro-life justice.”

That seat was filled by Neil Gorsuch. In that case, there was the pretense of normality. Gorsuch was vetted, and in his elephantine, condescending way, at least pretended to answer questions from Senators of both parties at judiciary hearings.

Next, in 2018, came Brett Kavanaugh, and farce turned dead serious. Even before hearings began, the White House announced there wasn’t time to turn over to the Judiciary Committee documents that would show Kavanaugh’s record as a George W. Bush staffer. The answer, of course, would have been to delay the confirmation hearings—but there was an election coming (do you sense a theme here?) and the Republicans sensed (probably wrongly) a winning issue in forcing a vote. They also had a nominee designed to their specifications: Kavanaugh made no secret of his extremism on issues of gun safety, reproductive choice, and executive power.

Their haste lost any shred of decency when accusations—highly credible ones—emerged suggesting that the nominee had, as a teenager, committed sexual assault. Kavanaugh’s response was one of the most extraordinary performances in the history of the judiciary—a snarling, threatening, vile and overtly partisan assault on anyone who challenged his title to a seat he treated as property. Witnesses were proffered to corroborate Christine Blasey Ford’s charge. But a phony FBI “investigation” refused even to hear them, and on October 5, 2018, this wretched simulacrum of a judge was wedged onto the Court.

Which brings us to September of this year—another election year, another display of banana republic partisan muscle. Before Justice Ruth Bader Ginsburg could even be buried, Trump had nominated a woman who seems likely to undo her entire legacy; and election-year rules had been reversed because—because, this time, the Republican party, which had demanded delay in 2016, now saw advantage in indecent haste.

There was no pretense of vetting; the nominee essentially rolled her eyes at Democrats’ questions. She knew—they knew—the entire country knew—that the fix was in. She would be seated; she would be seated before the election; and she would not promise not to take us full circle, to a potential Bush v. Gore coup d’état even more disastrous than the first.

As this vile mummery played out, I mourned—not for the first time—the idea of a Court that was property of the nation, not of party; that sought justice, not ideological advantage; that earned a nation’s respect, not its gaping horror.

We shall not look upon its like again.

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Garrett Epps

Garret Epps is the Legal Affairs Editor of the Washington Monthly and a professor of law emeritus at the University of Baltimore. He is the author of American Epic: Reading the U.S. Constitution and four other books about the Constitution.