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DANIEL VAUGHAN: The Supreme Court is a legitimate institution
The latest line of attack from Democrats on the successful confirmation of now-Justice Brett Kavanaugh is that the Supreme Court is no longer a legitimate institution. But that’s a ludicrous claim that seeks to delegitimize a vital part of the constitutional order purely by politics.
This new refrain is coming from the usual suspects: Vox, The Nation, and sites like FiveThirtyEight have attempted to give these claims of illegitimacy the veneer of data journalism. The central claim of these Supreme Court opposers is best laid out by Vox, who reported that the court is suffering from a loss of legitimacy because the public is losing faith in the Court as an institution, writing:
They’re talking about the people’s faith in the very idea of the Supreme Court: the notion that it should be the final arbiter on political questions, the ultimate interpreter of the Constitution, insulated from partisanship and politics.
And to prove that point, Vox and others looked to public polling on the Supreme Court that showed how the public’s trust in that institution has gone down over time. They used that data, alongside Kavanaugh’s lower polling among his fellow Supreme Court justices, to assert that Kavanaugh’s presence on the high court makes it an illegitimate institution.
As a simple logic chain, that makes some amount of sense. But that criticism misses two things: first, the reason the Court has lost legitimacy over time has nothing to do with conservatism or Kavanaugh, but rather, the decision of the Supreme Court to adopt living constitutionalism in an attempt to invent law out of thin air.
Second, the only way to protect the court’s legitimacy is to have judges committed to a textualist and originalist interpretation.
On the first part, I’ve written multiple times that the reason we have such contentious Supreme Court confirmation hearings in the first place is that the Court has stopped being an institution that merely interprets the law and has started manufacturing it. This practice began with the living constitutionalism movement and has, over time, eroded the foundational principles of the court.
When the Supreme Court started magically finding new rights within the Constitution — like abortion, which is nowhere in the text — a Rubicon was crossed. Instead of interpreting the law, the Supreme Court became something closer to a super-legislature that no other branch could touch.
The Supreme Court effectively raised the values of its nine justices above that of anyone in the political system. The Founders’ vision was for the political components of the system, Congress and the executive branch, to create laws. The Supreme Court existed solely to ensure none of those laws were unconstitutional and to adjudicate various disputes.
The late Justice Antonin Scalia wryly noted in a dissent for Planned Parenthood v. Casey that the Court was overruling the values of the people through undemocratic means:
The people know that their value judgments are quite as good as those taught in any law school — maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours.
His point was that the people had their elected officials to pass laws through democratic means. The people don’t need the Supreme Court, full of liberals viewing the Constitution as a living document, to usurp the democratic will of the people and supplant the public’s values with the justices’ own.
And if that’s what the justices want to do, we shouldn’t nominate them: we should elect them.
All of that brings us to the second problem with the claim from the left that the Court is now illegitimate. The only way to restrain the power of the Supreme Court and maintain it within the confines of the Founders’ views is to interpret the Constitution in a way that keeps the court from engaging in value judgments. And the only method of interpretation is textualism or originalism, wherein justices interpret the text of the Constitution, statute, or case in question as it is written, preserving the meaning that those words had at the time the law was passed.
In other words, under this system, justices would attempt to uphold the words of the law as they were written at the time, which makes the judges something like umpires calling balls and strikes.
Is it a perfect method? Of course not. Judges can have differing views on the meaning of various clauses, even with the help of dictionaries. But under this system, they are at least trying to uphold the intent of the political process, not usurping it with their own politics.
In that sense, not only does Kavanaugh not hurt the legitimacy of the Supreme Court — he restores it.
We know liberals don’t believe living constitutionalism is the best form of interpretation, because they’d balk at five conservative justices interpreting the Constitution however they wanted. Simply put, liberals only want liberals on the Supreme Court so that they can read the Constitution however they deem fit.
That’s the real legitimacy problem.
The originalism of Kavanaugh, Neil Gorsuch, and rest of the conservative justices on the court will restore order to the court that has long been needed.
This isn’t a partisan victory; it’s a restoration project.
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