October 15, 2018
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There is no excuse for undermining the Supreme Court’s legitimacy

Susan Walsh | AP
Susan Walsh | AP
Supreme Court Justice Brett Kavanaugh stands before a ceremonial swearing-in in the East Room of the White House in Washington on Monday.

Politics, more art than science, resists easy generalizations and defies hard rules. And yet there’s one fixed principle that has stood me in good stead over two decades of writing it: The minute you start sounding like a John Bircher, you’ve made a terrible mistake.

The John Birch Society, founded in 1958 by a retired businessman named Robert Welch, took America’s low-level anti-communist paranoia to entirely illogical extremes. In the 1950s, the Soviets had indeed managed a limited penetration of the U.S. government, but Birchers saw communists everywhere. Welch regarded even President Dwight D. Eisenhower as a “dedicated, conscious agent of the Communist conspiracy” and the civil rights movement as a plot to build a “Negro Soviet Republic.”

Which nicely sums up the unillustrious history of the John Birch Society: Even when it was sort of right about something like communism, it somehow managed to be utterly wrong. And the Birchers’ penchant for snatching defeat from the jaws of victory was nowhere more evident than in their most infamous stunt, the campaign to impeach Supreme Court Justice Earl Warren.

There were many reasonable conservative criticisms of judicial overreach in the decades that followed the New Deal. The commerce clause extremism of cases such as Wickard v. Filburn handed Congress a license to legislate untroubled by constitutional limits, and para-legislation in areas such as abortion rights and the death penalty reflected an impatient judicial caste’s discovery that its own legislative preferences happened to be constitutional rights, beyond argument or alteration.

Conservatives had every right to denounce the court’s evolution toward a sort of liberal supra-legislature, to build up alternate legal philosophies and to groom law professors and judges who could advance them in the public arena. But the John Birch Society proposed a stupid shortcut, as if cultural and philosophical movements could somehow be embodied in the person of one justice. The proposed detour would have taken the country toward all-out war on an essential institution, rather than working within the system to change its positions.

In the wake of Brett Kavanaugh’s confirmation to the Supreme Court, the left has started flirting with its own versions of “we must destroy this village in order to save it.” Even before he was confirmed, progressive groups had begun calling for his impeachment. That, however, requires a daunting two-thirds majority of the Senate. Hence increasingly serious suggestions that whenever Democrats regain control of the House, the Senate and the White House, they should pack the Supreme Court by expanding the number of justices.

The left has legitimate reasons to be unhappy with Kavanaugh’s nomination, starting with the fact that Christine Blasey Ford’s allegations of sexual assault were, at minimum, plausible. Progressives are also correct that Senate Republicans’ refusal to consider the nomination of Merrick Garland in 2016 was an unjustified escalation of the partisan Court Wars. And they’re entitled to be appalled at the prospect of more right-leaning jurisprudence.

But none of these concerns justifies assailing the court’s legitimacy, much less overturning a law that since 1869 has held the number of Supreme Court justices at nine, making it impossible for one administration to transform the court into a political rubber stamp. Bad men have sat on the court before — William Douglas, the influential liberal justice who participated in landmark decisions such as Brown v. Board of Education (1954) and Griswold v. Connecticut (1965), seems to have been a shameless liar and, as a Post review of one book about him put it, “something of a monster” toward women. Yet neither this, nor the brazen political machinations that nudged the court into embracing the New Deal, made those rulings any less the law of the land.

And they shouldn’t. Without a final arbiter that both sides recognize, American democracy can’t function. That legitimacy is incompatible with treating the court as a nakedly political body.

Of course, the court has always been influenced by politics to some extent. Yet, abandoning its somewhat mythical neutral aura, in favor of an openly partisan wrestling match, would be worse for the country than any ruling likely to come out of the Supreme Court — tantamount to agreeing that we are no longer a nation of laws, only of raw political power.

That might make for good partisan politics, with 250 years of settled law up for grabs at every election. But it would make for terrible democratic governance. Which was one of the many ways the John Birchers went so badly wrong: They redefined “the democratic consent of the governed” as their own personal agreement with the court’s output.

Luckily for us, despite fitful attempts to impeach other justices, the broader conservative movement largely rejected their extremism, and “Impeach Earl Warren” billboards are a humorous memory. Let’s hope the left proves similarly cautious — and that the nation holds together long enough for us to all look back and laugh.

Megan McArdle is a Washington Post columnist.

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