First of all, I’ll offer no pep talk. Maybe there’s a term for the opposite—something like “de-pep talk,” in homage to Jeb Bush. But it’s really a “de-catastrophizing talk,” or an attempt at it. No powder has been left dry in the Trump era. Every week, according to headlines, heralds the end of the American way. It might be the appointment of Betsy DeVos or Jeff Sessions, the end of net neutrality, or the Republican tax cuts. When the government really does start to threaten freedom of speech, or allow indefinite detention, or kill people without trial, or grab the money of commoners in order to funnel it to the rich, or support and arm an ally that is starving civilians of a neighboring country, the yelling won’t matter anymore. So let’s try to put the confirmation of Brett Kavanaugh to the U.S. Supreme Court in perspective.
We’ve been here before. That’s not just because every Supreme Court nomination seems to set off a circus. It’s because fears that an appointee will “tip the court to the right for generations” get expressed with nearly every Republican appointment. They were especially pronounced when liberal lion Thurgood Marshall got replaced by Clarence Thomas and when swing-voting Sandra Day O’Connor got replaced by Samuel Alito. “Never in memory has a single nomination so threatened to redirect the Court as Alito’s,” warned The Nation over a decade ago, predicting that his ascension would “swing the Supreme Court to a right-wing authoritarianism.” Alito’s confirmation, wrote author Jan Crawford Greenburg in a 2007 book, would have “repercussions as yet unimagined.”
In a narrow sense, of course, Greenburg’s characterization was true, since unimagined repercussions are inescapable. But the imagined repercussions—such as the overturning of Roe v. Wade—didn’t come to pass. Yes, Alito is hard-right. Many people have hated his rulings, often for good reason. But the court didn’t do a sudden flip. Predictions of a succession of crazy 5-4 decisions dominating our landscape are overblown. Fewer than one in five Supreme Court rulings have such a split. Over a third are unanimous.
Will Kavanaugh help overturn Roe v. Wade? To do that, the court would first have to hear a case challenging a set of abortion restrictions. That will happen eventually, but not immediately. In recent years, the court has sidestepped most abortion cases, allowing lower courts to rule against new restrictions and declining to hear further appeals. Laws that currently violate constitutional precedent, such as a so-called “heartbeat law” in Iowa that bans most abortions after six weeks, are similarly likely to get struck down by appeals courts and dismissed by the Supreme Court. Chief Justice John Roberts shows keen awareness of political currents, and he knows this is nuclear. Far likelier is that the court would allow gradual and less drastic encroachments on access to abortion over the long term. Even in the worst-case scenario, of Roe being overturned, states would retain the right to make their own laws, and fewer than one in five Americans believe that abortion should be outlawed in all circumstances. Again, though, a ruling that extreme would cause societal upheaval, and it’s unlikely.
Will Kavanaugh help gut the E.P.A. and remove regulations that protect the little guy? He might, but it’s more complicated than that. Leave aside that he’s one vote among nine, meaning others, too, must sign onto something sweeping before it becomes reality. Kavanaugh’s approach in itself purports, correctly or incorrectly, to protect the liberty of the little guy. Many of the regulations we encounter are devised by civil servants rather than Congress. Kavanaugh wants to be sure that if the regulation is one that he considers major, Congress is behind it, not someone who’s protected from voters. Similarly, he wants regulators to answer to the president, not because he wants a dictatorial executive but because the president, like Congress, must answer to voters. In Kavanaugh’s words, a president “must be able to control subordinate officers in executive agencies” in order to “carry out the executive power and be accountable for the exercise of that power.” There’s a tradeoff here. The risk on one side is that a president introduces crass politics into the civil service; the risk on the other that the civil service becomes an unchecked power in its own right. Agencies like the E.P.A. might find themselves weakened, much to the disadvantage of the little guy who doesn’t want his air or water polluted. But there’s a balance at play.
Will Kavanaugh be corrupt and carry water for Trump and foil the investigation of Bob Mueller? Probably not. Again, he’s one vote, so he’d have to be joined by four corrupt henchmen (or henchpeople, to be proper). It’s unlikely for other reasons, too. Kavanaugh has previously ruled contrary to the wishes of his benefactors, notably in the case of Salim Hamdan, Osama bin Laden’s driver and bodyguard, whose conviction was vacated. Kavanaugh undoubtedly cares about his reputation, and sacrificing it to protect Donald Trump isn’t a likely path. Life in Washington D.C. will already be hard enough for him. Of its voters, only 4 percent went for Trump.
Will Kavanaugh kill off the legitimacy of the Supreme Court? The legitimacy of the Supreme Court rises and falls, and there’s a lot of Democratic anger and resentment over how Judge Merrick Garland was denied a vote in 2016, when Obama nominated him, not to mention over how George W. Bush was installed in 2000. But this isn’t the fault of Brett Kavanaugh, and problem of distrust of institutions dwarfs the Supreme Court. Our authorities have lost legitimacy across the board over the past couple of decades. It hasn’t helped that the U.S. government got Iraq so wrong, that economists got the last recession so wrong, or that large swaths of academia have descended into charlatanry. Rebuilding trust will take decades. The court was already in trouble that way.
Will Democrats try to impeach Kavanaugh? No. The usual show horses, such as Reps. Luis Gutiérrez (D-IL) and Ted Lieu (D-CA), have already called for it. But Nancy Pelosi has dismissed it, saying, “That would not be my plan.” Which is wise. Democrats are busy enough as it is entertaining dreams of impeaching Donald Trump, who invites that sort of combat, without adding a Supreme Court justice to the cart. The effort would backfire in countless ways. Lieu and Gutiérrez probably know this. But they also know their constituents.
Will Democrats try to pack the court? Probably not, but it’s possible. The consideration would have to be a simple one that nevertheless gets ignored to a surprising degree: what you do, the other side can do, too. Just watch Trump try to nominate a justice if the Senate goes to the Democrats. In today’s politics, bygones will not be bygones.
