Predictions as of 10/7/2018, as predicted, fresh polls showing Republicans consolidating their leads in Texas and Tennessee have brought Democratic chances to win the Senate to a new low:
The Supreme Court has perhaps always been a party political body. It’s inevitable, really, given that Justices are nominated by the President and confirmed by the Senate. But the Court has always attempted to maintain an impression of impartiality, and even in the modern day Chief Justice John Roberts has made it extremely clear that he wants the court to hold on to this non-partisan appearance.
However, in the bitter struggle to appoint Kavanaugh to the Court, all air of non-partisanship has dissipated. The confirmation process was transparently a partisan fight, leading voters to become only more entrenched in their opinions as Democratic approval of Kavanaugh dropped heavily through the process, whilst Republican approval of the nominee went up. Kavanaugh himself was openly partisan in the hearings with Ford, and in the final Senate vote 97 of the 98 Senators who voted did so along party lines. Despite a fleeting and slightly strange news cycle about a possibility that Trump was going to fire Deputy Attorney General Rod Rosenstein, which was probably a diversion tactic carried out by the President to draw attention away from the confirmation hearings, the eyes of the public were for weeks focused on Ford, Kavanaugh, and the Senators who would decide his fate.
So what happens if the Supreme Court comes to be viewed by the public as a strictly partisan body? Perhaps we can assume that its approval ratings will shift to match those of Trump or the GOP. Certainly during the Obama and Trump administrations, when a liberal Justice was seated Democrats came to approve of the Court much more highly, while Republicans became much more likely to disapprove of the Court, and vice-versa for a conservative Justice. It seems reasonable to predict that the confirmation battle over Kavanaugh will only reinforce this trend, and that we can expect to see approval of the Court amongst Democrats drop dramatically this year.
But what does this mean? Well, the Supreme Court has no army. Its power stems from its legitimacy, and its legitimacy stems from public opinion, which is traditionally quite favourable for the Court. When the Court ordered Nixon to release the tapes that ultimately spelled his doom, it had no power to force him to do so. The tapes were released because Nixon anticipated that the political fallout of refusing a Supreme Court order would be greater than that of simply releasing the tapes, even though he knew that releasing the tapes was very likely to result in the end of his Presidency. But this Supreme Court order was unanimously agreed upon by the Justices, in a time when the majority of Americans had a lot of faith in the Court. In the latest court and the hyper-partisan national environment, it’s hard to imagine all 9 Justices agreeing on anything at all, let alone an action against a prominent political figure. Perhaps if that decision in 1974 had been reached by a 5-4 majority in a Supreme Court viewed as a party political body, with approval ratings of around 40%, Nixon would have felt that the consequences of refusing the order were minimal. Afterall, in order to avoid removal from office all he needed was the support of most of the Republican Senators.
Moving away from the theoretical and back to the reality of the moment, will Democrats see the Supreme Court as legitimate now that Kavanaugh has been confirmed? Frankly, it seems extremely unlikely. Clarence Thomas and Brett Kavanaugh were both confirmed to the Court despite allegations of sexual assault made against them, and are both deeply conservative. The Court rules on a wide variety of issues, but perhaps the most likely to trigger a full blown legitimacy crisis are those pertaining particularly to women. The Court is likely to be make conservative rulings on issues surrounding sexual assault, gender equality, and abortion, perhaps even seeking to overturn Roe v Wade, and all of these rulings will probably be made by a 5-4 majority, where 2 members of the majority have been accused of sexual assault. Democrats will surely never respect these rulings or see them as legitimate, and by extension will perceive the Court as simply another arm of a polarised and partisan federal government. Maybe if the Democrats were to gain control of the Senate and Presidency simultaneously in the future they would even consider stacking the Court, adding perhaps another 2 liberal justices to form a 6-5 liberal majority, justifying this move by reminding voters that the GOP blocked Obama’s nomination of Merrick Garland for 293 days and of course by calling upon memories of the Kavanaugh confirmation battle. If this were to happen, or the Democrats were to gain control of the Court by any other means, it seems overwhelmingly likely that Republican faith in the institution would become very low indeed.
Finally, an unpopular Supreme Court could call into question the legitimacy of the federal government as a whole. Trump’s approval stands at around 41%, Congress’s approval is a mere 18%, and hasn’t been above 50% since the beginning of the century. The majority of Americans disapprove of the President, and a vast majority disapprove of Congress, so if a majority were to disapprove of the Supreme Court, Americans would disapprove of all 3 branches of the federal government. This paints a dark picture of national politics, but perhaps it would be unsurprising. The 2016 Presidential election signalled an historic turning point. We are in a time when no quarter is asked nor given. When “bipartisanship” is little more than a buzzword used by the occasional maverick congressional candidate during election season. When every norm in politics is cast aside in favour of pursuing the most politically expedient course of action. The war for hearts and minds has reached a new level of brutality, and shows no signs of calming down.
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