Supreme Court:

Legitimacy on trial

For years, Supreme Court Chief Justice John Roberts has been deeply worried about “preserving the court’s legitimacy,” said Ronald Brownstein in TheAtlantic.com. That makes the bitter partisan battle over Brett Kavanaugh’s nomination Roberts’ “worst nightmare.” When hit with allegations of sexual misconduct, a visibly furious Kavanaugh accused Senate Democrats of “colluding to sink his nomination.” As he railed about the Clintons and future political payback, he sounded like “a Republican operative in robes.” If you look back, every conservative on the court has arrived “in a manner that lacks legitimacy,” said Erwin Chemerinsky in Prospect.org. Clarence Thomas lied about sexually harassing female subordinates. John Roberts and Samuel Alito were appointed following the court’s blatantly partisan intervention in the 2000 election on behalf of George W. Bush. Republicans confirmed Neil Gorsuch after refusing even to consider President Obama’s pick, Merrick Garland. The court’s conservative bloc was created through “Republican power plays.” The truth is that neither party wants “fair and impartial” justices, said Gerald Seib in The Wall Street Journal. Elena Kagan, for example, worked in the policy shop of the Clinton White House, and the political background of other Democraticappointed justices was just as clearly liberal. Unfortunately, “our deeply polarized political system” can’t resolve divisive issues such as gun rights, abortion, and same-sex marriage, “so it relies on the courts to do the job.” Most of the time, that’s not a problem, said Cass Sunstein in Bloomberg.com. While a few high-profile cases have been politically divisive, much of the court’s important work interpreting the law and resolving disputes “never reaches the front pages.” In those cases, justices are surprisingly like-minded. This past term, for example, Kagan and Roberts joined sides “no less than 80 percent of the time.” Nonetheless, “a legitimacy crisis” may be coming, said Amelia Thomson-DeVeaux in FiveThirty Eight.com. Polling suggests “the public has slowly become more disillusioned with the Supreme Court,” with Gallup recently finding that only 37 percent of Americans had a “great deal” or “quite a lot” of confidence in the court. The Kavanaugh battle is likely to bring that figure lower. In the past, when the court ruled on politically charged issues like segregation and suffrage, most Americans grudgingly accepted their rulings. In coming years, that may no longer be true.