‘The Court will be transformed into a blatantly partisan institution’
Geoffrey R. Stone is Edward H. Levi distinguished professor of law at the University of Chicago.
Political conservatives have been working for this moment for the past 50 years – since the election of Richard Nixon. For half a century, they have sought to take control of the Supreme Court. The problem for them, however, is that as they made ever more progress in achieving their objective, the concept of “conservative” jurisprudence grew ever more radical. Nixon’s appointment of conservative justices like Warren Burger, Harry Blackmun and Lewis Powell brought about a significant move in the Court to the right. But then political conservatives concluded that this wasn’t conservative enough. Instead of embracing justices who were committed to judicial restraint, they increasingly sought justices who were committed to conservative judicial activism – to justices who would hold unconstitutional laws regulating campaign finance, laws restricting guns, laws guaranteeing voting rights for minorities, laws authorizing affirmative action and laws restricting commercial and corporate speech. Although boldly tossing around terms like originalism, judicial restraint and “calling balls and strikes,” in fact these justices – at least in the most controversial and important constitutional decisions – almost without exception reached results that were consistent with – and dictated by – raw conservative political ideology.
Sometimes, though, the conservatives failed in their appointments, and some Republican-appointed justices – such as John Paul Stevens, Sandra Day O’Connor, David Souter and Anthony Kennedy – insisted on judicial independence and refused to toe the party line. This has no doubt been frustrating. But if Brett Kavanaugh’s nomination is confirmed, these arch-conservatives, led by the Federalist Society, will finally achieve victory. The Supreme Court – largely because of the unconscionable refusal of Senate Republicans to confirm President Obama’s nomination of D.C. Circuit Court of Appeals Chief Judge Merrick Garland – will have won the day. Across the entire spectrum of critical constitutional issues – ranging from abortion to gay rights to affirmative action to gerrymandering to campaign finance to the regulation of guns and beyond – they will now hold a majority. This is a stunning victory for partisan judicial decision making, and a stunning defeat for the integrity and credibility of our Supreme Court, which will now be transformed into a blatantly partisan institution.
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