The U.S. Supreme Court's luster could be dimmed if it is perceived as partisan after Judge Brett Kavanaugh's confirmation hearings, professors say. (AP)
Judge Kavanaugh's gambit may have rallied Republican members of Congress and their constituents to push to confirm him. But academics who study the U.S. Supreme Court and its public perception say his victory would come with a cost: It nudges the high court down a path that could end in a crisis of legitimacy.
Last month's dramatic hearing testimony was just another example of a dangerous slide toward politicization of the court, experts say.
Justice Samuel Alito's confirmation process was also a political gauntlet, including campaign-style ads for and against him. The late Justice Antonin Scalia was famous for his fiery and often quite partisan dissents. And Justice Ruth Bader Ginsburg in 2016 infamously tore into then-presidential nominee Donald Trump, calling him a "faker" and telling reporters she couldn't imagine the country with him as president.
"I do worry about that. It's sort of a death by a thousand cuts," said James Gibson, a political science professor who studies judicial politics at Washington University in St. Louis.
Judge Kavanaugh's confirmation hearings were a bold new step in that direction, according to experts on the high court's politics. Retired Justice John Paul Stevens, a Republican, reportedly took the rare step of saying that Judge Kavanaugh's performance at the hearing should disqualify him.
And Justices Elena Kagan and Sonia Sotomayor reportedly spoke about the importance of the court staying above the political fray at an event Friday at Princeton University.
"Part of the court's strength and part of its legitimacy is that people don't think of it as politically divided in the same way as the rest of the government, as somehow being above the fray," Kagan was quoted by The Daily Princetonian as saying. The justices didn't speak about Judge Kavanaugh.
Judge Kavanaugh himself appeared to grasp the potential for real trouble down the line. Prior to his confirmation, he penned an opinion article for The Wall Street Journal insisting that he would be fair and just and that the political attacks he had lobbed were not typical of him.
"I was very emotional last Thursday, more so than I have ever been," the D.C. Circuit judge wrote. "I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said."
Precarious Legitimacy
The U.S. Supreme Court has little inherent power of its own.
Rather, it relies on the public perception that it is legitimate and has authority. A common refrain is that it lacks the power of the sword or the purse, as it has no police or money to enforce its decisions. But it also does not have a jurisdiction defined by the Constitution.
If the U.S. Supreme Court were to suffer a serious loss of legitimacy, it would take only a simple bill to gut it or to "pack" it by adding more seats for a president to fill.
"I'm not sure if you're clear how vulnerable the Supreme Court is to Congress," Gibson said.
Congress decides what cases the U.S. Supreme Court can hear, and it can set limits on the types of cases that could go before the justices. A major obstacle keeping legislators from doing that is the threat of having to answer to a public that has great faith in the high court's legitimacy.
Former Rep. Ron Paul, R-Texas, introduced several bills that would have removed cases involving abortion and same-sex marriage, among other issues, from the Supreme Court's jurisdiction. Those bills died without a vote.
The most famous instance of court-packing occurred in 1937, when former President Franklin D. Roosevelt tried to increase the size of the court, which was then an impediment to his New Deal legislation, to a maximum of 15 justices. This would have allowed him to appoint jurists more amenable to his political goals.
Congress overwhelmingly rejected the proposal.
"The traditional explanation is that when courts enjoy high stores of legitimacy, the public will ensure their decisions are implemented and the legislature and president will face sanctions for attacking the court," said Michael J. Nelson, associate professor of political science at Pennsylvania State University.
An example of this kind of power came in 2000, when Democratic presidential candidate Al Gore conceded after the Supreme Court effectively named his Republican rival George W. Bush president in its Bush v. Gore
opinion."He conceded because he knew he couldn't win, maybe, but also because he knew the court's legitimacy was strong and he couldn't attack it," Gibson said. "That's the real power of legitimacy. It's getting people to accept an outcome that they don't agree with."
Experts said the court's legitimacy is extraordinarily resilient and will certainly survive this political moment. But as powerful as that legitimacy is, it only exists as long as the public says it does.
Consequences
Justice Clarence Thomas' confirmation hearings in 1991 bear some obvious similarities to Judge Kavanaugh's. But even then, Justice Thomas did not raise the prospect of a partisan conspiracy.
That difference is significant, Gibson said. While Justice Thomas has been haunted by Anita Hill's sexual harassment allegations, it has not damaged the Supreme Court on an institutional level.
But after the Senate Judiciary Committee questioned Christine Blasey Ford last month about her allegations that a young Brett Kavanaugh had sexually assaulted her when they were in high school, the judge confronted the politicians angrily.
He sneered and shouted and hurled unsupported accusations that the entire controversy was a deliberate conspiracy against him.
"This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups," he told the senators. "This is a circus."
It is likely that had Judge Kavanaugh refrained from engaging with senators on a partisan level, his own process would have likewise spared the high court from institutional harm, Gibson said.
"But now, I have a question mark, and I have a question mark specifically because I wonder whether Kavanaugh is a politician in robes," he said.
Another big question mark is how, exactly, this might affect public opinion of the high court.
Gibson, Nelson and Claremont Graduate University associate professor Christopher Krewson — three academics who have spent much of their careers studying just that — said they couldn't be sure because nothing quite like that has happened before. Here was a judge, out of his robes and personally revealed, making no attempt to appear above the political fray.
"We're kind of in a new environment here," Krewson said. "All the legal symbolism that the court can, in a way, hide behind when it makes decisions, they don't have the same sort of mystique to work with in the confirmation hearings."
Whether that image of the sneeringly partisan man at the table will be eclipsed by a dignified man in a robe at what is still perhaps the most respected court in the world has yet to be seen.
But Judge Kavanaugh, after he called his confirmation hearings "a circus," added something that those who study the high court fear could turn out to be true.
"The consequences," he said, "will extend long past my nomination."
--Editing by Jill Coffey and Alanna Weissman.
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