The Republicans' Supreme Court

     An old story tells of a king whose subjects grew weary of his demanding whims. They petitioned him for a body of law to give them known rules for framing their behavior.
     With express reluctance, the king agreed. But he wrote the law in so tiny a hand, and posted it so high on the castle wall, that only he could read it. Thus the law had no discernible meaning for the people. It had only force. It meant whatever the king said it meant.
     For ultimate explication of American law, the Constitution establishes a Supreme Court. However the Constitution offers surprisingly little detail on the court's size and shape, or the outer limits of its mandate. Particulars have evolved at the hands of presidents, Congress and assertive chief justices.
     In performance -- and more particularly in the public mind -- the modern court has emerged as a result-oriented institution.  Justices are perceived as using their power of decree to establish public policies they favor.  The referees are perceived as making a practice of throwing the game.
     Without any general expectation of impartial judicial temperament, the selection of justices becomes the equivalent of handicapping horses.  And the elevation of ideology above ability has from time to time placed on the court justices of dubious fitness. In at least one instance it has placed a justice of dubious character.  Events suggest that the Republican faction now controlling Congress is willing to place another.
     At a minimum, Brett Kavanaugh's behavior in Congressional hearings proved that he is an intemperate partisan.  Perhaps it is quaint to wish that this alone could bar him from confirmation, but some of us wish it nonetheless. Among us are the American Bar Association and the American Civil Liberties Union. Perhaps it is also quaint to wish that confirmation debates did not have the dignity of adolescent squabble. But some of us wish it nonetheless.
     Congressional Republicans have indulged a might-make-right ethic in governance. They have displayed no felt obligation to the legitimate interests of the many millions of Americans who voted for other parties. In muscling their agenda forward they have focused vigorously on the court, contorting rules to prevent one seat from being appropriately filled, and now insisting that another go to a nominee who is palpably unfit.
     The Republicans may be on their way to confirming a maxim: It is possible to win battles while losing the larger war.
     Their cynical self-interest has already called their party into disrepute. Their manipulation of the court may position them for history's disapproval.  If the court figures in the American mind as a kind of supra-legislature, it cannot be successfully  populated with philosopher kings who are markedly more conservative than the public at large. Judicial decree lacks one ingredient essential in fully functioning democratic governance: the consent of the governed.
     The behavior of a Republican-stacked court remains to be seen.  In years past, some justices have broken their presumptive stereotypes. But it is possible to imagine rulings short on meaning and long on the force of imposed ideology.    The country would not sit easy under such governance, and given the Constitution's silence on some sorts of detail, the court is not institutionally impervious to major political backlash.
     History may call today's Republican faction both reckless and foolish.