The Coming Kavanaugh Court Doctrine: Democrats Are Unconstitutional


Brett Kavanaugh’s partisan outburst in response to allegations that he sexually assaulted Dr. Christine Blasey Ford when they were both teenagers creates a huge and glaring problem for the legitimacy of the Supreme Court’s conservative majority in crucial cases that determine who our country elects and how we elect them.

Kavanaugh’s confirmation will create an ideologically cohesive five-vote majority of conservative justices appointed by Republican presidents and a four-vote minority of liberal justices appointed by Democratic presidents for the first time in the Supreme Court’s history. During his confirmation hearing, Kavanaugh tried to dispel fears that he would rule on a partisan basis, arguing that “a good judge must be an umpire – a neutral and impartial arbiter who favors no litigant or policy.”

But Kavanaugh’s blatant display of partisanship during his testimony last week, when he dismissed Ford’s accusations as part of “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election” and “revenge on behalf of the Clintons,” made his earlier claims he would “call balls and strikes and not … pitch or bat,” ring hollow.

“Essentially what he did is he took his mask off and he revealed himself as a politician who wears a robe,” said Loyola Law School professor Jessica Levinson.

Kavanaugh’s confirmation would complicate the image of the court carefully crafted by Chief Justice John Roberts, experts say, particularly when it comes to the forthcoming 5-4 decisions that help Republicans win elections and make it harder for Democrats to do the same.

Over the past 12 years, the five Republican-appointed justices have issued a series of rulings that have greatly benefited the Republican Party. But each of those cases has been carefully decided to protect the court’s integrity from challenges that the conservatives are helping the political party they are affiliated with. “John Roberts is so good at masking that in legalese that it doesn’t feel quite as troubling,” Levinson said.

The results, however, have been the same. Shelby County v. Holder made voting more difficult for minority and low-propensity groups who traditionally support Democrats. Citizens United allowed corporations and the wealthy to freely spend on political campaigns, creating a flow of money that helped Republican secure control of state legislatures and governors’ mansions across the country, allowing them to gerrymander districts to the party’s benefit and write even more restrictive voter laws. Janus v. AFSCME Council 31 made it more difficult for public employee unions to collect dues, a policy that has been shown to hurt Democrats in state elections. Husted v. A. Philip Randolph Institute allowed state election overseers to more easily purge voters from the rolls. And Abbot v. Perez upheld a number of Texas legislative and congressional districts that a lower court had ruled were illegal racial gerrymanders.

“I think having Judge Kavanaugh on the court would make the split legitimacy issue even worse, said Rick Hasen, an election law professor at the University of California-Irvine. “Judge Kavanaugh expressed a kind of raw tribal partisanship that we don’t normally hear from judges, and if he were on the court no doubt those on the left would think he decided the way he did, at least in part, because of his Republican Party leanings.”

There are no shortage of cases that Kavanaugh could wind up hearing on the Supreme Court where questions about his political preferences would arise.

Thanks to the court’s 5-4 rulings gutting voting rights laws, upholding restrictions on voting and enabling free spending by Republican-supporting corporations, Republicans have taken power in countless states and passed a raft of new voting restrictions since 2010. Voters in 24 states will face more stringent voting procedures than they did in 2010 in this year’s midterms. And voters in nine states will face new voting restrictions enacted since the 2016 election. Some of these restrictions are already being litigated in state and lower courts.

Gerrymanders in Maryland, in favor of Democrats, North Carolina, in favor of Republicans, and Wisconsin, in favor of Republicans, are all likely to be heard by the court in the very near future.

Court watchers also believe that there is a very high likelihood that Commerce Secretary Wilbur Ross’s decisions to include a citizenship question on the 2020 decennial census will come before the court. The inclusion of the question, which critics state is designed to reduce participation by immigrants, could lead to an undercount of the U.S. population in certain regions and thus the malapportionment of electoral votes and congressional seats in a manner that could hurt the Democratic Party.

If Kavanaugh is seated for these and other cases, he should expect a high number of recusal requests.

“I think we’ll see motions filed for the justice to recuse himself and not to hear those cases,” Wendy Weiser, director of the democracy program for the Brennan Center for Justice said.

But the court has no independent system to vet recusal requests. Instead, it is up to the judgment of the justice.

Kavanaugh could choose to recuse himself from cases where his vote could be seen as tainted by the promise he made in his testimony about those working against him on behalf of the Clintons. “What goes around comes around,” he said.

Or he could simply cast the votes that he is expected to, thereby further gutting the Voting Rights Act, upholding racial gerrymanders and knocking down campaign finance restrictions.

He could use the same line that the late Antonin Scalia liked to give after he cast one of the five votes by justices appointed by Republican presidents to end an election recount in Florida and install a Republican president in the White House.