By Kevin D. Williamson
Thursday, January 16, 2020
Once again, the Supreme Court’s reputation and honor are
on the line, a crisis of credibility occasioned by the possibility that it may
not give Democrats what they want.
In this case, the Court is personified by Chief Justice
John Roberts, who will per protocol preside over President Donald Trump’s
impeachment trial in the Senate. And so the intimidation campaign has begun:
“Mr. Trump’s impeachment trial will be perilous for the reputation of Chief
Justice John Roberts,” insists the New York Times.
Why should it be?
Oddly, but not unexpectedly, that is not made at all
clear by Adam Liptak’s report in the Times, which is not exactly a
report. Liptak warns the chief justice against making displays of partisanship
without ever establishing that Roberts is in need of any such admonition from
the august pages of the New York Times. His quotations from Roberts are
the definition of anodyne. “We should celebrate our strong and independent
judiciary, a key source of national unity and stability,” Roberts said in his
annual report on the state of the judiciary. Liptak detects in this a coded
message to Trump. Well. What else? “As the new year begins, and we turn to the
tasks before us,” Roberts said, “we should each resolve to do our best to
maintain the public’s trust that we are faithfully discharging our solemn
obligation to equal justice under law.” So much for that.
Liptak quotes law professor Frank Bowman, who is the
author of a book about impeachment, warning that even by the standard of
presidential impeachments, “This one in particular is so poisonous.” About that
very interesting claim, we might charitably note that the data set is very
small.
So if Roberts gives us no especial reason to worry that
he is about to turn into a slavering partisan operative on the model of Ruth
Bader Ginsburg, then what, exactly, is the issue? The answer turns out to be O
tempora! O mores! “The Supreme Court is still reeling from a series of ugly
confirmation battles that placed two of Mr. Trump’s nominees on its bench,”
Liptak writes. Indeed it is reeling, but the reputational blot there is on
Senate Democrats who cynically embraced a rape hoax for their own narrow partisan
ends. That’s a neat political strategy: Attack an institution and then demand
that it do things your way because it is under attack.
One might be forgiven for suspecting that this is a
cynical ploy.
The Democrats are great defenders of American
institutions — provided those institutions serve their interests. In October
2016, the po-faced defenders of all that is good and precious were wearing
themselves out demanding that Donald Trump and his supporters make a pledge to
“accept the results” of the presidential election, a demand that was predicated
on the assumption that Trump was going to lose. After making those demands, the
Democrats have spent every single day refusing to accept the results of the
2016 election. They don’t give a fig about the credibility of our electoral
processes — they care about winning. The Electoral College, the Senate, the Bill
of Rights — when the Constitution itself gets in the way, they are ready and
eager to gut it.
Yesterday, Democrats were willing to slander a Supreme
Court nominee, and then to continue slandering him as a justice; today, they
are very, very concerned about the delicate reputation of the Supreme Court.
Yesterday, Democrats
were working to advance a court-packing scheme that would seal and certify
the politicization of the Court; today, the Court is so sacrosanct that we must
move heaven and earth to fortify its perceived legitimacy. It is difficult to
take seriously the notion that they are moved by tender concern for the
reputation of an institution that they insist is staffed by political hacks and
rapists.
The incoherence of those who would pressure the Court
into acting as a factotum for the Democratic party infects those on the Court
who are themselves attempting to act as factota of the Democratic party,
Justice Elena Kagan prominent among them. Kagan has argued that the Court faces
a “legitimacy deficit” and suggested that the cure for it is the explicit
politicization of the Court’s votes in the search for an ideological middle.
That’s a familiar kind of moderation and middle-ground seeking: the kind
partisans discover and embrace when they think they are losing.
“The Court’s legitimacy depends on people not seeing the
Court in the way that people see the rest of the governing structures of this
country,” she said in a 2018 speech, and then went on to argue that so-called
swing votes on the Court — those justices “who found the center” — are the key
to its credibility. The center of what? The important intellectual dispute
concerning the federal courts is not about whether they should be ideologically
and politically moderate but about whether they should be ideological and
political at all. You may not agree with the originalist or textualist view,
but Justice Kagan here is contradicting herself. (Not for the first time:
During her confirmation, she insisted that she could find no fundamental right
to same-sex marriage in the Constitution; after confirmation, she lost no time
in finding one.) Either the Court tries to apply the law as it actually is
written, refusing to bend to political pressure — and bending to political
pressure is precisely what “finding the center” means — or it is in fact
precisely like “the rest of the governing structures of this country,” a
partisan super-legislature. Of course, Democrats see the Court as a partisan
super-legislature and have long treated it as such. They do not object to the
politicization of the Court. They object to the Court’s not giving them what
they want.
As it turns out, the Supreme Court’s reputation is always
hanging by the barest tatter when Democrats think they may not get what they
want. See Sheldon Whitehouse on labor disputes (“Senators
Warn Union Case Risks Supreme Court’s Reputation”), Eric Holder on Brett
Kavanaugh (“Eric
Holder claims the Supreme Court’s credibility is at stake in Kavanaugh vote”),
Emma Long on Neil Gorsuch (“The
Legitimacy of the Supreme Court is at Stake”), Mark Joseph Stern on the
Census (“The
Supreme Court is Poised to Shred Its Credibility”), or any of the thousands
of other headlines making the same argument: The Court’s choice is either
destroying its own credibility or giving Democrats what they demand.
It isn’t that the Supreme Court does not deserve
criticism. It certainly does, and Chief Justice Roberts bears some
responsibility for that. But where it has erred is in knuckling under to
precisely these sorts of demands rather than standing up for its independence
and its institutional integrity — and the law, which still matters at least a
little bit.
As for this kind of media assault, we should understand
it for what it is: a lobbying and bullying campaign undertaken by people who
believe not that the Supreme Court should be apolitical but that it should be
robustly political — in the service of their agendas.
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