The Face of Privilege: The Lessons of the Brett Kavanaugh Confirmation Hearings

One thing that the Brett Kavanaugh Supreme Court hearings destroyed was the myth of legal
neutrality.  That may be a good thing because it is time to recognize both that the Supreme Court and its Justices are not politically neutral and that neither should be.
An enduring myth of American politics is that the Supreme Court is above politics and that the Constitution and the law are neutral.  This myth, perpetuated by Alexander Hamilton, the constitutional framers, and legal education, is central to the legitimacy of the Supreme Court and the decisions it reaches.  For Justices such as Antonin Scalia who urged that the Constitution be interpreted by the intent of its framers, locating its meaning in their intentions was part of  the myth.  Legal neutrality is a powerful anchor for the court’s capacity to command obedience, providing a cover to suggest that the Justices were not simply politicians with robes.  Law schools, in teaching individuals how to think like lawyers, often refuse to discuss the power and politics behind the law, wanting to claim instead that legal reasoning and methodology are neutral.
The reality is that the law is an instrument of power and politics, often reflecting the biases and ideologies of the judges who sit on the Court.  Beginning in the 1930s legal realists such as Jerome Frank made that point. But other legal scholars such as Randall Kennedy, Catherine MacKinnon, and adherents of the Critical Legal Studies movement from the 1970s pointed out that the law as a whole embodies the values of the rich, those who are white, male, and straight. 
Political scientists using statistical models can show ideological and attitudinal biases and preferences on the part of individual Justices and how in recent years the best predictor of how a Justice would vote is look at the appointing president.  And while many want to point to the Supreme Court as the counter-majoritarian institution that protects what the most famous footnote in legal history calls “discrete and insular minorities,” the reality has been for most of its history it has either endorsed majoritarian  preferences or the minority it has protected has been that of corporations and the wealthy.  The bias of the Supreme Court is best shown in how in its 2010 Citizens United v. Federal Election Commission it freed  corporations to spend unlimited money to influence elections as a form of free speech, while in its 2018 Janus v. AFSCME it used the First Amendment to silence labor unions and make it difficult for them to raise and spend money for political purposes.
Brett Kavanaugh is the perfect embodiment of the Supreme Court’s bias.  He will be yet another Justice from an elite Ivy League Law school, a graduate of an Ivy League undergraduate institution, a product of a private prep school.  He has entitlement written all over his face, but collectively so does the entire Supreme Court.   Even its so-called liberal members represent an elite  hardly representative of American society, rarely challenging the core capitalist power and values that give meaning to the Constitution and the law.  The Kavanaugh ascension and coronation to the  Court have perhaps finally stripped the myth of legal neutrality from the Court, making it clear that it is another face of power and politics.
Stripping away this will scare many, but it should be a wake up call.  For too long progressives and Democrats have placed faith in the judiciary as the final bastion of protection for them when it comes to reproductive rights, civil rights, and other personal and political freedoms.  They foolishly hoped what Alexander Hamilton once called the “least dangerous branch” would be powerful enough to check the other institutions and provide blind justice for all.  That belief should  now be gone.
Unmasking legal neutrality is good.  The public needs to recognize that neutrality is not neutral–it supports the status quo which is not neutral.  Moreover, in so many ways, we should  not want real legal neutrality–whatever that is–in our Supreme Court and Justices.  In a confirmation hearing were a nominee to say that he could not comment on whether the Constitution made discrimination illegal because it is an issue that might come before him, one would hope that he would be rejected.
The point is that we should hope that the Constitution and Justices are not really neutral, that  instead they should  respect and reflect an evolving constitutional morality and set of principles that express certain values.  We should expect the issue of reproductive rights is not an open question but instead is a resolved and settled constitutional issue.  So should the questions about racial, gender, and other forms of discrimination.  One should hope that our evolving constitutional morality respects as settled that members of the LGBTQ+ community are entitled to equal protection.  We should hope that an evolving constitutional morality says that money should not determine the outcome of elections or decide major questions in a democracy, or that the death penalty is an acceptable punishment. 
The myth of legal neutrality by hiding the power and biases of the law perpetuates the idea that questions of fundamental rights such as those noted above are a matter of debate.  They should not be, but they will continue to be contested until such time as one recognizes how the law masks and supports a privileged viewpoint that is not necessarily democratic.

Justice Kennedy and the Myth of the Legal Neutrality

There is a powerful yet enduring myth in America that was shattered as the Supreme Court closed out its 2017 term.  That myth is that law and politics are separate, or at least that the law can constrain political choices.  With 5-4 decisions upholding President Trump’s travel ban, striking down mandatory public sector union fees, and the resignation of Justice Kennedy, that myth has all but collapsed.

The myth of the law was well described by nineteenth century writer Alexis DeTocqueville, who declared in Democracy in America  that:   “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”  This quote captures two aspects of the myth of law.  First, that at some point all political questions in America eventually turn into legal ones capable of resolution by the courts.  Second, judicial resolution of controversies means that the law  is capable of addressing political disputes, perhaps even permanently, if the decision was made on constitutional grounds.

This myth has played out several ways across American history.  One has been in assuming that the Supreme Court stands above politics and that when it decides it does so on the basis of what the law says, not ideology.  As Chief Justice John Marshall said in Marbury v. Madison, perhaps the most important case in American law: “It is emphatically the province and duty of the Judicial Department to say what the law is.”

The other way it has played out is in many groups placing faith in the judiciary as the guardian or protector of their rights.  They did so because they did not trust  real politics, such as elections and voting, as they way to secure t heir political objectives.  Again to quote another Justice, here Robert Jackson in West Virginia v. Barnette in writing the majority opinion striking down a law mandating the recitation of the Pledge of Allegiance: “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”   Law stands in opposition to politics, the former constraints that latter, making the judiciary the ultimate protector of abortion, gay, minority, and free speech rights.

Yet the increasing reality is that the law is not above politics, and the judiciary does not use it to resolve political questions, but instead decisions are political themselves.  Political science research  shows that more often than not votes by individual Justices reflect their personal political beliefs. In recent history, the best predictor of how individual Justices will vote is to look at which president appointed them.  In my own research on Justice Scalia, one could show clear biases in decisions based on the issue presented or the litigants in the case.  All of the above is similarly true with the current members of the Supreme Court.

But until 2000 the Supreme Court was able to manage its reputation and hide behind the myth of law.   But when in Bush v. Gore the Supreme Court decided the outcome of the presidential race, public opinion significantly split over it and it has widened since.  Surveys suggest declining confidence in the Supreme Court’s neutrality, and increasing Justices to many look more like politicians in robes.  Chief Justice Roberts, who said in his confirmation hearing that “My job is to call balls and strikes and not to pitch or bat,” looks like the manager of one political team of four  Justices playing against another team of four, dueling for the swing Justice Anthony Kennedy to pitch or hit for their team.

In his tenure on the Court Kennedy was the critical vote in cores of 5-4 cases.  In most years he was in the majority 90% of the time, and in  5-4 decisions, some years 100%.  For the last 30 years it has been Justice Kennedy’s court, as he held the balance of power and restrained the most extreme ideologies.  But even he revealed his biases.  In Citizens United v. Federal Election Commission the Supreme Court signaled after initial oral arguments that it wanted to decide a broader case than originally presented.  When it finally decided the case it ruled in favor or corporate free speech rights, seeing efforts to regulate corporations as censorship.  And now in Janus v. AFSCME, it ruled against unions, with Kennedy casting the critical fifth vote.

Scalia’s death, the delay in preventing President Obama from appointing a successor, Trump’s appointment of Neil Gorsuch, and now Kennedy’s retirement and the politics of his replacement only have or will exacerbate the demythologizing of the law, especially, and which is likely, Justices continue to vote ideologically as political science research suggests.  This is bad because  one of the last realms  where polarization and politics had not tainted government may be gone, leaving the public without any checks on the extremism that has marked contemporary politics.

Perhaps the only bright side may be recognition of the limits on constitutionalizing politics.  By that, one lesson that may be learned is that the judiciary is not the best or final place to turn advance a political agenda.    Elections matter, and groups may have to resort to the ballot box and politics to achieve power and protect their rights or advance their interests, and not rely upon the courts to do so.

Note:  This blog originally appeared in Counterpunch.