The Supreme Court nomination process for Judge Brett Kavanaugh has been tumultuous and unusual. There are two aspects of the process that together signal a significant weakness in American democracy — one that will metastasize if he is seated on the Court.
These include his overt display of partisanship at his second hearing, and the accusations of sexual assault and misconduct that have come forward against him. As described below, the explicit display of bias on behalf of a Supreme Court justice is historically associated with systemic violations of civil rights. The behaviors Kavanaugh has been accused of indicate that victims of sexual violence can reasonably expect fewer protections under his watch.
This would represent a massive shift in the number of Americans who expect government to protect their basic rights and would be a significant degradation of democracy.
Judges are expected to be impartial, not partisan
America has had Supreme Court justices in the past who have been explicit partisans. In 1836, Roger Taney became the chief justice under unusual circumstances and presided for 28 years over a Court that ruled in some of the most controversial cases in our nation’s history. Taney wrote the Dred Scott decision in 1857, which ruled that African Americans could not be considered citizens because the framers of the Constitution considered African Americans to be inferior. The case proved to be a critical precursor to the Civil War that resulted in the deaths of more than 600,000 Americans. See this recent piece by Calvin Schermerhorn for more historical context on Taney and others.
Recent social science evidence and research shows that when the public perceives the Court as engaging in actions that serve a political cause, or some specialized minority, the public loses faith in the body as an impartial arbiter (but see this).
Even when the Court has ruled in decisions that have had explicit consequences for elections and political parties, such as Bush v. Gore in 2000, the Court has done so in a way as to not break that fourth wall. While many people viewed that decision as a partisan one, the Court went to great effort to maintain some semblance of judicial integrity and impartiality. They understood the importance of delivering the decision so that it would be accepted by the public. The alternative is constitutional crisis. There also seemed to be consensus that there was no way to avoid some sense of partisanship. The urgency of providing a conclusion to that bizarre election was paramount.
But even in those circumstances, the Court did its best not to look directly into the camera. While political science research has shown that justices have ideological preferences that strongly affect their decision-making, the veil of impartiality is part of the magic that provides the Court its authority. It’s not much different from our collective belief that the dollar has value. After all, the dollar is just a green piece of paper. Like the Court, it only has value because we all agree that it does. If this belief goes, so does the institution.
Kavanaugh shows his stripes
Last Thursday, Judge Kavanaugh publicly revealed his partisan sympathies. He explicitly criticized Democratic members of the panel, suggested that his nomination process was stalled due to a conspiracy dating back 20 years to his time working on the Kenneth Starr investigation of President Bill Clinton, and showed antipathy and animosity toward groups strongly associated with Democrats.
This was highly unusual behavior. The modern period has not seen a Supreme Court nominee break this fourth wall. The power, authority, and legitimacy of the Supreme Court rests solely in the belief of the general public that decisions made by the Court are just. Without this support, the institution cannot serve its role as the third branch of government.
Public support for government institutions is essential to all the branches of government to some extent. However, the executive and legislative branches have an electoral process that provides a direct link between citizens and their representatives.
The judicial branch is different. It is not designed to be a representative branch. It has no electoral connection to the public. These features might make it seem like it should be more difficult for the judicial branch to have the support of the public that provides it legitimacy and that gives its rulings public acceptance; however, historically, the Supreme Court has enjoyed a greater sense of support and faith from the public than its two counterparts.
The Gallup study above shows that the public generally has more faith in the judiciary than the other branches, despite (or maybe because of) its lack of electoral accountability.
When Kavanaugh used overtly partisan rhetoric at his hearing this week, he revealed his bias. His condemnation of those who oppose him showed him as an arbiter with preconceived notions of right and wrong that are outside of the concept of blind justice. Those who see Kavanaugh as someone who is not their ally may not have faith in the decisions and rulings he writes. This alone creates uncertainty and instability quite different from what we’ve seen in the past five decades of the Supreme Court.
The question, then is do Kavanaugh’s overt partisan statements shake some Americans’ faith that the Court can be an impartial arbiter? If so, how many Americans might feel that way? What proportion of Americans is it? And with what intensity might they hold that view?
This is where the allegations of sexual assault come into play.
The Kavanaugh cloud of doubt
Judge Kavanaugh has categorically denied participating in any inappropriate sexual behavior as a teenager or college student, despite several unrelated accusers coming forward with similar stories. His defensive attitude and outright rejection of the claims have led him and his supporters to blame those victims for “derailing” his confirmation process.
However, for people who have experienced sexual harassment or sexual assault, or who are highly sympathetic toward those who have, his defensive attitude and callousness toward victims renders him unrelatable at least, and threatening at worst. It’s not unreasonable to think that those who are sympathetic to victims of abuse would see Judge Kavanaugh as someone who is not like them, who cannot relate to them, and who would not protect them. This population may have a hard time accepting the fairness and legitimacy of his decisions because they do not see him as someone who would protect them.
Now consider that half the population of America is female. In this population, 81 percent of women experience sexual harassment and about half of women experience unwanted and inappropriate sexual touching sometime during their lives. About 20 percent of women are victims of sexual violence at some point in their lives, and the rates are higher among women of color.
A sizable portion of the population therefore may look at Kavanaugh and his judicial choices with a high degree of skepticism. If he’s lost the trust of this population, which may be a majority of country, his judicial decisions will lack authority and his participation in the Supreme Court will threaten the institution’s legitimacy.
The quality of democracy in America is an individual experience, not a collective one
America has suffered through explicit partisans on the Court before. It resulted in great civil rights abuses of people who lack political power. America has also seen those accused of sexual harassment on the Court before. Kavanaugh is different because not only has he shown himself to be a strict partisan, but he’s also been accused of sexual assault, rather than harassment. He may therefore not be viewed as an impartial arbiter and protector by most Americans. More importantly, those who view him as biased or threatening are not likely to be in positions of power. Women and people of color are not the favored groups in the hierarchy of power. It’s the Court’s job to protect vulnerable populations.
If history is our guide, the explicit display of partisanship by a Supreme Court justice signals a willingness to put the rights of advantaged populations above those of vulnerable populations. The sexual assault allegations show us a population he may be willing to subjugate. Together, these two insights into this nominee are a foreboding preview of what his role on the Supreme Court might look like.
The experience of watching Christine Blasey Ford and Judge Kavanaugh provide testimony last week caused many Americans to relive their own experiences with sexual violence. If Kavanaugh is confirmed by the Senate, this population and those who sympathize with it may find Kavanaugh’s rulings and Court participation to lack authority and legitimacy. These Americans may feel like they live in a country that does not protect their rights as much as it did before Kavanaugh’s seating. This is exactly what political scientists mean by “democratic demise.” For this population, democracy is less secure because their individual rights are less protected.
By this account, the state of democracy in America is not a universal condition experienced equally by all Americans. Rather, one’s level of privilege, status, and identity with in-groups of power determine the level of democratic protection a person enjoys.
Any American who has suffered injustice at the hands of their government may already feel this way. This is the nexus of the Black Lives Matter movement, and other movements for racial and social justice. What we’re experiencing with the Kavanaugh appointment expands populations who are in a vulnerable class, and who perceive themselves to be vulnerable. As the population of citizens who sense that democratic institutions do not protect them expands, democracy weakens for everyone.