17 October

A Diminished US Supreme Court

The confirmation of Brett Kavanaugh to the US Supreme Court seems to highlight the intense politicisation of every facet of American public and institutional life. The nation remains fiercely divided along strict party lines, with rare exceptions, over the nomination of a formerly well-regarded circuit judge. A UK perspective may provide some worthwhile insight.

Here it is perhaps only legal cognoscenti who would feel confident in naming more than one or two Justices of our Supreme Court. Judicial personalities are not much brought up in our public life and among pundits. It must be allowed, of course, that the Supreme Court here does not enjoy the remit of its counterpart across the Atlantic. The nomination process, moreover – and importantly – ensures that the political winds of the moment do not exercise undue influence. (Some might, it is true, argue about an obstacle course for judicial appointments that is thought to favour social ‘liberals’, but almost no-one sees this in party-political terms.) Our judges’ relative off-screen obscurity seems to preserve a certain legitimacy to UK courts. While Brett Kavanaugh and his family have had their lives combed over by a vicious media, his British counterparts can claim quietly to uphold the rule of law.

The US inherited the common law from its former colonial master. How, it must be asked, has such divergence as we now experience taken place? Politicisation of judicial appointments is a feature of American life as a consequence of a distinct form of liberal democracy bequeathed by some at least of the Founding Fathers. With a fear that a democratic will might bring a ‘tyranny of the majority’, the Fathers ensured the enshrining of ‘separation of powers’ in their political settlement. A liberal determination to promote civil rights necessitates restraining boundaries in the Constitution – the Supreme Court having a key role here. The Court has in a rather unexpected way has become facilitator of dramatic social change in issues like abortion and same-sex marriage. Such changes in the UK took place at the behest of Parliament and via majority vote of electorally accountable politicians. In this context, the retirement of Justice Kennedy – a ‘swing-voter’ for decades on social issues – was always going to be followed by intense public scrutiny of his successor.

The extent and nature of that scrutiny, however, points to grave problems facing the Court. The Senate confirmation vote went for the most part on party lines. Democrat Senators were seemingly uninterested in Kavanaugh’s legal credentials or technical suitability as a Justice. Their attempt to block his nomination relied singularly upon the dredging up of accusations of alleged sexual assault in youth. Supporters of Kavanaugh criticised this trial by media – the television dramatizing each episode – as hardly fitting the dignity of the office in question. Their concerns are legitimate, but it is a pointer to lack of political responsibility that Justice Kavanaugh’s Republican (and other) supporters raised such concerns only when they feared his chances were disintegrating. Both sides lose under a compromised Supreme Court, even if these sad events have been by no means without precedent in almost any era.

The nomination is confirmed, and the Justice joins his eight colleagues. Because – in broad terms – neither side manifestly sought truth or justice, rather than validation of pre-set positions in the ‘culture wars’, many see harm having been done to the precious legitimacy of legal institutions that prioritise impartiality and resist political polarisation. It remains to be seen if Kavanagh’s nomination really is a watershed moment for the Constitution and its relation to American party politics. The credibility of America’s governing institutions is at stake.

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