Sean Wilentz says the Supreme Court’s legitimacy is now at stakeHistorians in the News
tags: Sean Wilentz, SCOTUS, Brett Kavanaugh, Confirmation
Sean Wilentz is the George Henry Davis 1886 Professor of American History at Princeton University and the author of, most recently, The Politicians & The Egalitarians: The Hidden History of American Politics.
… With Kavanaugh now the fifth vote in a 5-to-4 hard-right majority, the court has come perilously close to losing its legitimacy on any matters even remotely connected to partisan concerns, ranging from voting rights and campaign-contribution laws to issues concerning women’s reproductive rights, environmental law, labor law, gun safety, corporate regulation and a long list of other crucial matters on which the court will certainly rule in the near future.
But maybe that loss of legitimacy is not the very worst thing that could have happened. After Kavanaugh’s performance and his strong-armed confirmation, the 5-to-4 decisions that ensue will at least clarify exactly what the long-term right-wing campaign has been all about. It’s had nothing to do with restoring the “original intent” of the framers of the Constitution, which has been transparent mumbo-jumbo propaganda from the start. It’s had nothing to do with reining in judicial activism. It has to do with unleashing judicial activism, in the form of judicial attacks on and possible repeal of fundamental laws as well as court decisions that have checked inequality and injustice, from the Affordable Care Act back to Roe v. Wade and the Voting Rights Act, and then back even further to the reforms of the New Deal and Progressive eras.
Above all, it is of a piece with a decades-long assault on democratic institutions that has set the pace for the illiberal counterrevolutions that are now sweeping though the Western world. As early as the 1950s, American conservatives and reactionaries understood that their plutocratic and racist causes were doomed unless they took radical measures. It wouldn’t suffice to be the kind of conservative who, as William F. Buckley remarked, “stands athwart history, yelling Stop.” It would be necessary to bend history to the right-wing will, which required more drastic action. It would require changing the very structure of American politics and government, taking aim at everyone and everything that stood in the conservatives’ way, from organized labor, which had become a bulwark of social reform and democratic politics, to the vindication of voting rights that upended traditional Jim Crow. And the extremists would have to do these things without appearing to violate the Constitution. They would use all of the legal tools that were available to them to undermine democracy, like gerrymandering; they would adopt scorched-earth strategies and tactics in Congress and state legislatures, abandoning any pretense of respect; they would scrap the Fairness Doctrine and build dynamos of hyper-partisan disinformation, above all Fox News; and, crucially, they would stock the judiciary with ideologues who would gut existing Great Society and even New Deal legislation and put their seal of approval on new reactionary triumphs….
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