Partisanship in the Supreme Court

It’s no secret that Brett Kavanaugh’s confirmation will swing the Supreme Court towards the hard-right, possibly rolling back recent progressive social gains. The Democratic Party has spearheaded the resistance against Kavanaugh’s confirmation, citing the supposedly non-political position of the courts. Undoubtedly, we need a strong social movement for civil liberties—but before that can happen, we must dispense with the liberal mythology surrounding the Supreme Court.

While the courts are theoretically a check on the legislative branch, the politicization of the judicial system is inevitable. There is no hard balance between the three branches of the civil state; only a tenuous unspoken settlement has historically prevented a unitary government from emerging. However, the explicitly political Republican rejection of Merrick Garland, and now the supposedly non-political Democratic resistance to Kavanaugh, has exposed the fragility of this supposedly unpolitical system. The courts are just as much a political battleground as the Senate and House.

However, since Democrats persist in claiming the courts to be impartial arbitrators of law, they must turn to more personal attacks to resist right-wing nominees. Whereas Republicans were up-front about their political rejection of Obama’s nominees, Democrats point to the personal moral failings of Kavanaugh. He must be resisted somehow—but we can’t politicize the courts, so let’s use this he-said-she-said example from thirty years ago! This isn’t to say that survivors of rape and sexual assault shouldn’t be taken seriously. However, we should also understand how the Democratic Party is using Kavanaugh’s accusers: as political pawns.

In any case, even if a morally sound nominee were to be confirmed, it would be a wash for most of society. Nominees to the Supreme Court are just bourgeois judges, nominated by a bourgeois president, looking to be confirmed by bourgeois politicians to be appointed to a court that interprets two hundred-year-old bourgeois laws. There is variation within these nominees: some support freedom of abortions, some believe that marriage is between a man and a woman—but all of them believe in the spirit of the founding documents of this country.

Which is to say, the spirit of upholding ruling-class supremacy and a politico-economic elite. It was a “non-politicized” Supreme Court that dropped the ball on legislation nearly explicitly targeting blacks and Hispanics during the War on Drugs. It was a “non-politicized” Supreme Court that ruled in favor of keeping anti-sodomy laws in 1986. With or without Kavanaugh, the Supreme Court will continue to serve as the judicial justification for elitist policies.

Moving forward, we must question liberal conceptions of both the purpose and real function the Supreme Court serves today. It is not a purely impartial judicial body, as the legalists say. It is not a morally selective body, as today’s Democrats seem to say. It is, however, a Potemkin explanation for otherwise unreasonable politics. “Look, we know you disagree with this, but look! Our impartial judicial body says it’s ok!”