The Good Fight

The Supreme Court Is Now a Partisan Institution

Kavanaugh’s confirmation means Trump controls all three branches of government. There’s only one check left on the president.

Brett Kavanaugh and Donald Trump
Brett Kavanaugh and President Trump Mandel Ngan/Getty Images

When Donald Trump was elected, scholars of American politics ferociously debated the future of the Republican Party. Optimists argued that Trump had little support in the GOP, and would slowly be reined in by movement conservatives like Paul Ryan and Lindsey Graham.
Pessimists like me argued that Trump had a lot of support among the Republican base and would be able to reshape the party in his own image after a protracted civil war. He and his allies would start running primary candidates to challenge more traditional conservatives and eventually replace the current crop of officeholders.

It turned out that both camps of the debate were thoroughly naïve. Once Trump became the figurehead of the Republican Party, the full partisan tribalism of this ugly political moment came to drive conservatives into his arms. He didn’t need many actual primary challengers, much less a protracted civil war, to reshape the GOP in his image. Some conservatives, like Ryan, simply decided to vacate the field. Others, like Graham, reinvented themselves as Trumpian populists. Two years into the president’s reign, the Republican Party has become a blind tool of his whim.

I fear that we may now be on the cusp of making the same mistake all over again, vastly underestimating how quickly and thoroughly the Supreme Court might flip—not just from left to right, but from liberal to authoritarian.

As recently as a few months ago, I would have argued that the Supreme Court would likely act as a bulwark against a naked power grab from the executive even if conservatives were to gain a majority on it. For all of my disagreements with them, Neil Gorsuch and John Roberts have, after all, historically had little ideological overlap with Trump. While they might have deeply conservative views on important issues like abortion or campaign finance, they also hold deeply conservative views about the rule of law and the separation of powers. And that of course included a strong commitment to such basic constitutional principles as the importance of Congress or the independence of institutions like the FBI.

Reflecting on my own failure to predict how fast the GOP would flip, the shocking series of decisions the court issued over the course of the past year, and most of all the remarkable transformation that Brett Kavanaugh has undergone in a matter of weeks, I am no longer so sure of that prediction.

At the beginning of the confirmation process, Kavanaugh presented himself as an apolitical jurist. Invoking the metaphor that helped John Roberts ascend to the highest court in the land, he promised to be a disinterested umpire who simply calls balls and strikes. While the charade was somewhat transparent—the court has long since become sufficiently politicized that presidents of both parties pick their judicial nominees in part because they know that they are more likely to be sympathetic to their side—it was also a typical case of hypocrisy being the tribute that vice pays to virtue. At the very least, Kavanaugh seemed to recognize the importance of avoiding the appearance of rank partisanship. The mask he was determined to wear would have allowed him to favor Republicans once he took his place on the country’s most hallowed bench—but not in such a blatant manner as to cheer on a naked power grab by the executive.

By the time Kavanaugh appeared in front of the Senate Judiciary Committee to defend himself against accusations of sexual assault, he was ready to tear off his mask and start mauling the libs. If the accusations against him were false—perhaps even if he mistakenly believed them to be false—it would certainly be understandable that he was deeply angry. But even then, it would never have been acceptable for a potential justice on the Supreme Court to give such a nakedly partisan performance, accusing Democratic senators of exacting revenge on behalf of the Clintons and angrily denouncing “the left.”

Perhaps we should be grateful that Kavanaugh no longer feels the need to even pay lip service to virtue. For it allows us to look at the current situation in the bright light of unvarnished truth.

Supreme Court justices are no umpires. They are partisans, and increasingly naked ones to boot. In more ordinary times, that in itself would be bad enough. But in the extraordinary times in which we now live, it is terrifying. For as congressional Republicans have found over the past two years, to remain a member in good standing of the conservative tribe, it no longer suffices to embrace conservative social values or to have reverence for the constitution. Rather, it now means a willingness to ride the wave of conservative resentment wherever it may take you—and of course to back its foul-mouthed spokesman, whatever he might choose to do.

In the past year, conservatives on the court have already shown just how far they are willing to go in abandoning basic principles of political fairness if it happens to help their side. They have approved the Muslim ban by pretending, on the flimsiest of evidence, that it is not in fact a Muslim ban. They have allowed Ohio to purge its voter rolls in a transparent attempt to tip the state’s precarious political balance in the direction of the Republican Party. And they have upheld Texan electoral maps that had clearly been gerrymandered with a view to reduce the voice of African-American voters and make it more difficult for Democrats to get elected.

It doesn’t take an outsized imagination to envisage how conservatives, emboldened by their newfound majority, and carried along on the great wave of tribal anger, might in good time go one step further. If Trump managed to take full control of the FBI and the agency started to investigate the Democratic candidate in a presidential election, would they be sure to stop it? And if law enforcement agencies that are increasingly loyal to the president presented evidence suggesting that a key election result was tarnished by hacking or mass voter fraud, would they be sure to rule in an impartial manner?

The answer, it now seems to me, depends less on the integrity of the umpires-cum-partisans on the Supreme Court than it does on public opinion. Political scientists have long known that, in most democracies around the world, support for the government is a good predictor of court behavior, especially in times of great political strife: When an unpopular ruler with an authoritarian bend tries to stay in power through dubious means, judges usually live up to their responsibility of stopping him. But when a would-be authoritarian is carried along by significant public support, they rarely play their constitutionally mandated role.

Until recently, it may have been tempting to think that these lessons from foreign lands do not apply to the United States, a country with a much longer democratic tradition. But the similarity between the rise of Donald Trump and the experience of so many other embattled democracies is too obvious for us to keep believing such a clean distinction.

So, bearing in my mind how difficult it is to see around the next corner when history is intent on moving in an impetuous zig-zag, here is my prediction for the coming years: If Trump remains as unpopular as he is today, the conservative Supreme Court will skew the playing field even further to the Republicans’ advantage through a series of rulings on gerrymandering, voter fraud, and felons’ enfranchisement. But the court will not play along with a full assault on the independence of other institutions or with attempts to undermine how free (as opposed to how fair) elections are. If Trump, however, should somehow become significantly more popular than he is now—or do much better in the midterms than widely expected—the Supreme Court might change as radically over the next two years as the Republican-dominated Congress has over the past two.

All things considered, this is good news. After all, Trump remains unlikely to win over the many millions of Americans who intensely disapprove of him. Democrats are likely to win the House. They have a good chance of winning back the presidency in 2020. Doom is by no means foreordained.

But it is also a reminder of just how high the stakes of electoral politics now are. For the guardrails that seemed so solid as recently as two years ago have been shown to be infinitely bendable. If “We, the People” fail to constrain the current president, we can no longer rely on the Republicans in Congress, or the Republicans on the Supreme Court, to do so on our behalf.