Farewell Last Bastion of Justice

Barring anything significantly changing, Brett Kavanaugh will likely be confirmed to the United States Supreme Court, despite having lied under oath, despite having taken off the mask and shown himself to be a man possessed of a whiny and cruel temperament, and despite the numerous allegations of sexual assault.  Even if the democrats win every possible seat in the Senate next month, and even if there is a democratic majority in the House of Representatives come January, Brett Kavanaugh will not be impeached in 2019.  That said, let us for a moment look beyond the three-ring circus that this confirmation process has become and address something even more significant:  The U.S. Supreme Court itself.

In February 2017 I wrote a piece titled The Supreme Court – Our Best Hope which I began with

“Now that Congress has ‘fallen into line’ and is pandering to Trump’s every whim, licking his boots and kissing his posterior, there is one last bastion of justice remaining:  the United States Supreme Court.”

This was a time just before Neil Gorsuch’s confirmation, when I hoped that the three oldest Justices, Stephen Breyer, Ruth Bader Ginsburg, and Anthony Kennedy would be able to hold on and keep working for a few more years.  It was a time when I still believed Donald Trump would be gone from office within a year.  It was a time when there was still hope that our nation would be turned around before any lasting damage took place.  It was a time, apparently, when I was still wearing my rose-coloured glasses.

The intention of the framers of the U.S. Constitution was that the Supreme Court would be above partisan politics.  Surely, they realized that every man, even Supreme Court Justices would have their own set of beliefs, their own ideologies, but when they are sitting on the bench, they are expected to set aside their personal feelings and make decisions according to their interpretation of the Constitution based on the facts at hand.  It is an idealist philosophy, and hasn’t always been strictly followed, but by and large it has worked well.  This is how we saw Roe v Wade passed in 1973 with only two dissenting opinions:  Byron White and William Rehnquist.  The court deemed abortion a fundamental right under the United States Constitution, a ruling that has seen controversy since its birth, but that has not been successfully challenged, nor should it be.

This post is not specifically about Roe v Wade, but rather I use it as an example of how the Supreme Court is supposed to function.  A look at the justices in 1973:

Harry Blackmun – appointed in 1970 by Republican President Richard M. Nixon, became one of the more liberal justices on the court.

William Brennan – appointed in 1956 by Republican President Dwight D. Eisenhower in a recess appointment, became known as the leader of the Court’s liberal wing.

Lewis Powell – appointed in 1971 by Richard M. Nixon, was a conservative, but known for compromise and often was the swing vote.

Thurgood Marshall – appointed in 1967 by Democratic President Lyndon B. Johnson, was the first African-American appointed to the Supreme Court.  Marshall was a former Civil Rights activist, and expectedly his views were liberal to the extreme.

Warren Burger – appointed in 1969 by Richard M. Nixon, Chief Justice Burger was a conservative, but voted as a liberal when he felt it was right.

William Douglas – appointed by Democratic President Franklin D. Roosevelt in 1939, Douglas was primarily a liberal and a strict literalist in terms of interpreting the First Amendment.

Potter Stewart – appointed by Dwight D. Eisenhower in 1958, was firmly a centrist, often a swing vote.

William Rehnquist – appointed in 1972 by Richard M. Nixon, was a strong conservative.

Byron White – appointed by Democratic President John F. Kennedy in 1962 was neither liberal nor conservative, but by his own admission was a fact-based justice.

Nixon, a republican, had appointed four of the nine justices on the court when Roe v Wade came up for consideration, and Eisenhower had appointed two.  It is worth noting that all nine justices were males. Six justices had been appointed by republican presidents, only three by democrats, and yet legalized abortion became the law of the land.  This is what is meant by a court that rises above partisanship.  This is how it is supposed to work.  This is how ‘justice’ happens, folks.  It does not happen when a president appoints justices solely because he expects them to vote according to his wishes every time!

The Supreme Court has most always been looked upon with respect and dignity.  Historically, it has been a place where a lay person feels they should whisper, so as not to waken the ghosts of the many great men who have passed through its halls.  Once Brett Kavanaugh is confirmed, that dignity will be gone, for he brings baggage that will soil the landscape, that will remove much of the honour that was brought by some of the greatest judges the nation has known:

  • John Marshall, Chief Justice 1801-1835
  • Earl Warren, Chief Justice 1953-1969
  • Louis Brandeis, Associate Justice 1916-1939
  • William Brennan, Associate Justice 1956-1990
  • Oliver Wendell Holmes, Associate Justice 1902-1932
  • John Marshall Harlan, Associate Justice 1877-1911
  • Hugo Black, Associate Justice 1937-1971

And many other fine men and women.  The dignity, the non-partisan justice of the court will be another bastion of our democratic process gone.  When Senator Jeff Flake commented the other day that there is no value in reaching across the aisle to work toward compromise solutions, we knew Congress was no longer accountable to We The People.  If Brett Kavanaugh is allowed to take his place on the Supreme Court, then the court will no longer belong to We The People either.  Both Congress and the Court will have become a tool of the madman in the Oval Office.

You will find Fareed Zakaria’s column in The Washington Post to be of interest on this same topic.