October 9, 2018

Brett Kavanaugh, the Supreme Court, and the End of Legal Neutrality

by David Schultz from Counter Punch

One thing that the Brett Kavanaugh Supreme Court hearings destroyed was the myth of legal neutrality.  That may be a good thing because it is time to recognize both that the Supreme Court and its Justices are not politically neutral and that neither should be.

An enduring myth of American politics is that the Supreme Court is above politics and that the Constitution and the law are neutral.  This myth, perpetuated by Alexander Hamilton, the constitutional framers, and legal education, is central to the legitimacy of the Supreme Court and the decisions it reaches.  For Justices such as Antonin Scalia who urged that the Constitution be interpreted by the intent of its framers, locating its meaning in their intentions was part of  the myth.  Legal neutrality is a powerful anchor for the court’s capacity to command obedience, providing a cover to suggest that the Justices were not simply politicians with robes.  Law schools, in teaching individuals how to think like lawyers, often refuse to discuss the power and politics behind the law, wanting to claim instead that legal reasoning and methodology are neutral.
The reality is that the law is an instrument of power and politics, often reflecting the biases and ideologies of the judges who sit on the Court.  Beginning in the 1930s legal realists such as Jerome Frank made that point. But other legal scholars such as Randall Kennedy, Catherine MacKinnon, and adherents of the Critical Legal Studies movement from the 1970s pointed out that the law as a whole embodies the values of the rich, those who are white, male, and straight.
Political scientists using statistical models can show ideological and attitudinal biases and preferences on the part of individual Justices and how in recent years the best predictor of how a Justice would vote is look at the appointing president.  And while many want to point to the Supreme Court as the counter-majoritarian institution that protects what the most famous footnote in legal history calls “discrete and insular minorities,” the reality has been for most of its history it has either endorsed majoritarian  preferences or the minority it has protected has been that of corporations and the wealthy.  The bias of the Supreme Court is best shown in how in its 2010 Citizens United v. Federal Election Commission it freed  corporations to spend unlimited money to influence elections as a form of free speech, while in its 2018 Janus v. AFSCME it used the First Amendment to silence labor unions and make it difficult for them to raise and spend money for political purposes.
Brett Kavanaugh is the perfect embodiment of the Supreme Court’s bias.  He will be yet another Justice from an elite Ivy League Law school, a graduate of an Ivy League undergraduate institution, a product of a private prep school.  He has entitlement written all over his face, but collectively so does the entire Supreme Court.   Even its so-called liberal members represent an elite  hardly representative of American society, rarely challenging the core capitalist power and values that give meaning to the Constitution and the law.  The Kavanaugh ascension and coronation to the  Court have perhaps finally stripped the myth of legal neutrality from the Court, making it clear that it is another face of power and politics.
Stripping away this will scare many, but it should be a wake up call.  For too long progressives and Democrats have placed faith in the judiciary as the final bastion of protection for them when it comes to reproductive rights, civil rights, and other personal and political freedoms.  They foolishly hoped what Alexander Hamilton once called the “least dangerous branch” would be powerful enough to check the other institutions and provide blind justice for all.  That belief should  now be gone.
Unmasking legal neutrality is good.  The public needs to recognize that neutrality is not neutral–it supports the status quo which is not neutral.  Moreover, in so many ways, we should  not want real legal neutrality–whatever that is–in our Supreme Court and Justices.  In a confirmation hearing were a nominee to say that he could not comment on whether the Constitution made discrimination illegal because it is an issue that might come before him, one would hope that he would be rejected.
The point is that we should hope that the Constitution and Justices are not really neutral, that  instead they should  respect and reflect an evolving constitutional morality and set of principles that express certain values.  We should expect the issue of reproductive rights is not an open question but instead is a resolved and settled constitutional issue.  So should the questions about racial, gender, and other forms of discrimination.  One should hope that our evolving constitutional morality respects as settled that members of the LGBTQ+ community are entitled to equal protection.  We should hope that an evolving constitutional morality says that money should not determine the outcome of elections or decide major questions in a democracy, or that the death penalty is an acceptable punishment.
The myth of legal neutrality by hiding the power and biases of the law perpetuates the idea that questions of fundamental rights such as those noted above are a matter of debate.  They should not be, but they will continue to be contested until such time as one recognizes how the law masks and supports a privileged viewpoint that is not necessarily democratic.