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    What Kavanaugh gets wrong about the Supreme Court and politics

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    In Dobbs v. Jackson Women’s Health Organization, where the Supreme Court overruled Roe v. Wade and eliminated the constitutional right to have an abortion, Justice Brett M. Kavanaugh delivered a concurring opinion putting a new spin on an old precept. He wrote that when, as in the instance of abortion, the text of the Constitution is silent and therefore neutral, the court must also be neutral and leave the issue to the democratic political process.

    But history suggests otherwise. In fact, it shows that the court has never followed such a rule and, in fact, doing so could have led to far worse outcomes in some cases.

    During the 18th century, up to the time of the 1787 Constitutional Convention, judges like other officeholders were merely government officials who made both legal and political decisions. In the mid-1760s, judges in several colonies held the British Parliament’s Stamp Act null and void and unenforceable. Judges in one Virginia county, for instance, ruled that the Stamp Act “did not bind, affect, or concern the inhabitants of this colony, inasmuch as they conceive the same to be unconstitutional.” In the midst of dramatic political conflict over Parliament’s policy to tax the colonies, these decisions had no doctrinal basis on which lawyers could agree and thus became part of the political conflict.

    Independence did not raise judges above the political thicket. Instead, they quickly weighed in on the validity of legislation determining the rights of Loyalists who had supported Britain during the American Revolution. Again, their decision got swept up in the political debate over what should happen to Loyalists because there was no broadly accepted precedent about how to treat supporters of an established regime in a revolutionary conflict and the public was sharply divided.

    As late as 1786 in Trevett v. Weeden, the Rhode Island Supreme Court made a decision to hold unconstitutional legislation making depreciated paper money legal tender for the payment of debts. The judges waded into an intense conflict that had been waged through the political process and the press, invalidating what the winners had believed was a final legislative decision.

    At the Constitutional Convention, an issue arose about how to ensure consistency of state and federal law. James Madison proposed that states submit their legislation to Congress, which would have power to veto it. But his fellow delegates rejected his proposal in favor of review of the legislation by the Supreme Court. During debate on the issue no one suggested that Congress would determine the validity of state law any differently than the court would. Indeed, in discussing Madison’s proposal, Alexander Hamilton referred to the congressmen who would determine whether to invalidate state law as “judges”; he saw no distinction between Congress as a political institution and the judiciary as divorced from politics.

    In short, at the founding the idea that law was separate and distinct from politics had not yet emerged. But everything changed in Marbury v. Madison in 1803.

    Before President John Adams left office in 1801, he appointed a slew of Federalist judges. The incoming president, Thomas Jefferson, and many fellow Democratic-Republicans were concerned that these judges would behave politically — as judges had traditionally done. Jefferson himself was studying law at the time of the Stamp Act controversy and probably knew of at least some of the cases holding the act unconstitutional. He understood the political motivations behind the rulings and how decisions could get swept up in politics.

    In the chaos at the end of Adams’s term, acting secretary of state John Marshall did not deliver the commission of one of the judges, William Marbury. When Marbury sued to obtain delivery of his commission after Jefferson entered office, the Supreme Court found itself in the midst of political controversy. It had to decide whether Adams’s appointees, some of whose offices Congress had abolished by 1802 legislation, were entitled to their seats. The court’s ruling in Marbury suggested they were.

    But Chief Justice John Marshall understood that Jefferson and Congress, with widespread public support, would disobey any court order authorizing the judges to sit. Finding in favor of the judges, therefore, risked permanently weakening the new court, because the political branches would simply ignore its rulings and thereby display how little real power the court possessed. Marshall accordingly declared that he would decide only matters of law and not address political disputes such as whether to seat Adams’s judges. By resting its decision in Marbury and a companion case on narrow procedural grounds, the court avoided the traditional political behavior of 18th-century judges.

    Marshall’s determination to steer the court away from political confrontation stood in contrast to his successor as chief justice, Roger B. Taney. Infamously, in the 1857 case of Dred Scott v. Sandford, Taney adopted Southern political arguments about slavery. The decision fomented immense opposition that contributed to the 1860 election of Abraham Lincoln as president, which, in turn, helped drive the United States toward civil war.

    Taney’s Dred Scott opinion didn’t leave a divisive issue to the voters. Instead, it picked a side. As a result, the chief justice stoked the political conflict over slavery, instead of providing a solution to the issue. When the political process also did not resolve it, nothing remained but an appeal to violence.

    Normally the Supreme Court can stay out of trouble, as Kavanaugh urges it should, by not challenging, as Dred Scott did, the views of a majority of Americans. History suggests, however, that sometimes the court needs to take a political stand because the alternative is worse. Two cases are especially noteworthy.

    Brown v. Board of Education of Topeka was one. It was becoming clear to most Americans by the 1950s that statutorily mandated racial segregation had to be ended, preferably sooner rather than later. Because of the committee structure of Congress and the filibuster in the Senate, which gave Southern legislators outsize power, it also was clear that the political process would not end it. Only the Supreme Court could do it. The justices knew that ending segregation would produce profound political opposition, but they nonetheless made the judgment to do so — a judgment that nearly everyone today agrees was right. While their decision provoked fierce backlash and disobedience in the South, including calls to neuter the court in some fashion, it also paved the way after nearly a century for progress toward realizing the intentions of the 14th Amendment’s Equal Protection Clause.

    Bush v. Gore was another case, albeit a very different one, in which the court intervened in a political conflict, this time over the results of an election. It could have left the case in the jurisdiction of the Florida Supreme Court, which probably would have issued rulings in favor of Vice President Al Gore. Doing so might have avoided charges that Republican appointed justices were handing the presidency to the Republican candidate, George W. Bush. Yet, history has proved the decision to end the recount in Florida wise for three reasons.

    First, the evidence indicated that Bush won Florida, albeit by a narrow margin. Secondly, had the court stayed out of the case, the lack of clarity over the election results might have continued until the House of Representatives decided the issue in mid-January, which would have produced political chaos. Finally, the House probably would have selected Bush anyway. Although all these facts were not clear at the time, the court in retrospect prevented political chaos and supported the democratic political process.

    These cases expose how Kavanaugh’s attempt to craft a hard and fast rule about not intervening in political conflict is problematic and ahistorical. Especially when, as may be true in Dobbs, a decision perceived as political arouses the ire of a majority of Americans, it makes sense to steer clear of politics. Otherwise, the court risks weakening its legitimacy and power, and pushing the nation toward chaos.

    But the court cannot always do so. The difficulty of amending the Constitution puts pressure on the court to maintain, as Justice John Marshall Harlan wrote in dissent in Poe v. Ullman, a political balance “based on what history teaches are the traditions from which it [the country] developed as well as the traditions from which it broke.” The stature of the court and the peace of the nation depend on the justices making judgments that are not inconsistent with the directions in which civil society is trending — even if that means risking many Americans perceiving them as political. It remains to be seen whether the majority opinion that Kavanaugh joined in Dobbs did just this, but it is clear his rationale misreads the lessons of history.

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