1. The Editorial Board has been on the margins somewhat in talking about the looming crisis of legitimacy facing the United States Supreme Court. That appears to be changing. The political debate seems to be going national. (Yay!*)
2. In “The Supreme Court Is Coming Apart,” the Times’ @DLeonhardt wrote about three ways the court’s legitimacy can be protected and preserved. One is the easiest (though not easy): term limits of 18 years for each justice.
3. Two is court packing, or expanding the court to more than nine justices. The third, I think, is the most interesting—for Chief Justice John Roberts to come to his senses.
4. Leonhardt: There is the possibility that Roberts comes to understand the peril to the court. He clearly cares about the court’s credibility, and he has shown flashes of judicial modesty, respecting both precedent and Congress.
5. Leonhardt: The biggest example was his split decision on Obamacare. More often, though, he has chosen radical activism.
6. “More often” is an understatement. I’d say Roberts’ vote on Obamacare was the exception to a solid record of radical activism. Because it’s the exception, counting on a change of heart, simply because the court’s legitimacy is in question, seems like wishful thinking.
7. If Roberts comes to his senses, he can’t be relied on to do it on his own. He will have to be forced.
8. I’ll get to how in a moment. For now, let’s remember Senate Majority Leader Mitch McConnell’s role in this. Leonhardt is right in saying the court itself is its biggest problem.
9. You can’t keep handing down highly partisan 5-4 rulings while maintaining the court’s image of being above the fray. The nine are deep in the thick of the fray. They should concede the point or start handing down less partisan rulings.
10. But the high court’s crisis of legitimacy came into focus when McConnell sabotaged Merrick Garland’s nomination. It was then that the American public understood, or came closer to understanding, that the Supreme Court is fundamentally a political body.
11. Because it is a political body, it’s hard to take seriously McConnell’s renewed interest in decency, process and decorum.
12. When he says, “Senate Democrats and their allies are trying to destroy a man’s personal and professional life on the basis of decades-old allegations,” a reasonable reaction is shrugging and saying, “Meh.”
13. If I were a chief justice who claims to care about the court’s public image, I would be deeply concerned about the appearance of ramming through a problematic nominee who is facing at least three allegations of sexual assault,
14. a nominee who will be instrumental in stripping a woman’s right to privacy, a nominee who will help set the court at odds with half the country. I would be concerned about McConnell giving the GOP base what it wants at the expense of the court’s legitimacy.
15. I would be concerned about his radicalizing the electorate’s view of a radicalized Supreme Court.
16. That said, how can Roberts be forced? McConnell is answer. Despite reasonable arguments in favor of delaying Kavanaugh’s confirmation, or in favor of picking someone else entirely, McConnell appears to be going all-in, as is the president.
17. This is sparking a reaction from Democrats I have not seen before. They are signalling a willingness to investigate him after he’s confirmed (should he be confirmed).
18. Given what we have seen so far, there’s a lot to uncover about this would-be justice. If the Democrats take the House, they can immediately open hearings and flex their subpoena power to expose Kavanaugh even more.
19. That has the potential to deepen distrust of the court, a potential that could force Roberts to come to his senses.
20. Are there risks? You bet. The Republicans could return the favor the next time a Democrat picks a nominee. Roberts could dig in, refusing to budge, in which case the Democrats would have to escalate their strategy, which comes with risks.
21. It might be worth it, though, to demonstrate to the five conservatives they are not as safe as they think they are.
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