For Republicans, the investigations into Clarence Thomas and his friendship with Harlan Crow, a Texas billionaire, are just pretexts for an attack on the legitimacy of the Supreme Court.
“This assault on Justice Thomas is well beyond ethics,” Sen. Lindsey Graham, R-S.C., said during a hearing of the Senate Judiciary Committee last week on Supreme Court ethics reform. “It’s about trying to delegitimize a conservative court that was appointed through the traditional process.
“This is an unseemly effort by the Democratic left to destroy the legitimacy of the Roberts court,” he went on to say. “It’s put people at risk. It’s put their personal safety at risk.”
Sen. Chuck Grassley, R-Iowa, accused Democrats and their “allies in the liberal media” of waging “a crusade to threaten to pack and smear the courts.” And Sen. Mike Lee, R-Utah, described the questions about Thomas’ conduct as “attacks” that are “undermining the rule of law, endangering the security of the justices and their families, and inflicting incalculable damage on our country.”
For their part, Democrats do not seem eager to attack or undermine the legitimacy of the Supreme Court. Just a handful of Democrats in the House of Representatives called for Thomas’ resignation after reports that he accepted lavish trips and gifts from Crow, and Senate Democrats have been careful with the issue. There’s been no attempt to subpoena either Thomas or Chief Justice John Roberts — who was politely asked by letter last month to come before the Senate Judiciary Committee — and there’s no indication that Democrats have the votes to pass anything like a meaningful Supreme Court ethics law.
What’s more, Democrats still speak as if they hold the Supreme Court in high esteem. They defer to its judgments and trust it enough to think that it could, with a little prodding, handle its own ethics issues. The goal of their questions and investigations is not to delegitimize the court as much as it is to shore up the court’s legitimacy — to protect its standing in a world where most Americans take a dim view of most American institutions.
Republicans, in other words, are wrong; Democrats are not out to undermine the Supreme Court.
But they should be.
The problem of the Supreme Court isn’t that its members are mired in ethics scandals (although they are). It isn’t that it’s been captured by a network of conservative apparatchiks and right-wing billionaires (although it has).
No, the problem of the Supreme Court is that it is a powerful and unaccountable branch of government whose traditional role has been to protect the rights of property and the prerogatives of the privileged above all other concerns. And on those rare occasions where the court has worked for the interests of ordinary Americans — for workers, for Black Americans, for sexual minorities — it has been to either reverse previous decisions (such as Brown v. Board of Education’s reversal of Plessy v. Ferguson) and free Congress to enforce the Constitution as written.
For the left-of-center of American politics, the Supreme Court has been — over the course of its long history — more hindrance than help. And to the extent that liberals began to trust the court as an institution, it’s because they made a mistake, confusing the exceptional rulings of the court under Chief Justice Earl Warren for the norm. The Supreme Court, as legal scholar Lucas A. Powe Jr. has observed, is “part of a ruling regime doing its bit to implement the regime’s polices.” If the court appeared liberal — or at least friendly to liberalism — in the first decades after World War II, it was because of the hegemony of New Deal liberalism over American politics, not because of any inherent quality of the Supreme Court itself.
No one party or ideological movement has established hegemony over American politics in our moment, but the current Supreme Court represents a coalition that has burrowed itself into the judiciary in the hope that it can reshape the political order by judicial fiat even as it loses at the ballot box.
So far, there’s every indication that this will work. That’s because without court expansion or other serious reforms to the structure of the court — and absent unforeseen circumstances like an inopportune death — Republicans can expect to hold a majority on the Supreme Court until 2065, according to a recent paper on possible partisan composition of the court over the next century.
Put differently, barring a Franklin Roosevelt-like run of election victories, the only option Democrats have to rein the court in as a tool of the most reactionary forces in our society is to try to change its size and structure. The necessary first step toward those and other reforms is to undermine the court’s legitimacy, to knock it off its pedestal and remove some of its mystique.
And if the final result is a court that is much weaker than it has been in recent history — a court that can’t claim total control over the meaning of the Constitution — then that is something to celebrate. The Supreme Court is imperious, a fickle friend to justice. It would be better, in the end, to remove it as much as possible from the decisions that shape our lives, rather than to leave it with a leading role in the affairs of we the people.
Jamelle Bouie | The New York Times
This article originally appeared in The New York Times.
