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Did last week deliver a mortal blow to the myth of an apolitical Supreme Court?

MinnPost file illustration by Jaime Anderson

However this ends, the idea that the Supreme Court is a group of smart, relatively apolitical jurists whose job is to neutrally interpret and defend the Constitution and the rule of law from the more political branches is taking a series of mortal wounds.

Personally, I have viewed that “apolitical jurists” gag as a fairy story for years. But I also thought that the widespread belief in that mythical idea was an important element holding our democracy together. (My first book was titled “Our Constitution: The Myth That Binds Us.”) But I wrote that 30 years ago, for the bicentennial of the Constitution.

Since then, it’s become harder and harder to prop up the myth. I could point to plenty of myth-endangering developments since then.

But last week, in my humble estimation, may have struck a mortal blow. We’ll see.

I thought about the myth of the apolitical court as I read over the weekend the analysis of political numbers guru Nate Silver, written actually before Judge Brett Kavanaugh’s final angry man outburst, as Silver opined on the possible partisan political wisdom for President Trump and the Republicans of yanking Kavanaugh and trying to rush through someone more easily confirmable, especially if it could be a woman.

But the analysis soon turns to the chronological and partisan political questions of how many days are left to get it done and how it might affect the midterm results and whether it actually might be better to push someone else through, if not before Election Day, then maybe in the lame duck period before the new (possibly Democratic-controlled) Senate takes over, etc.

Does the myth – that the founders gave us a document and a system that can answer our most vexing questions and hold us together — still bind us?

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Comments (38)

  1. Submitted by Ken Wedding on 10/01/2018 - 09:01 am.

    Once again, Eric Black has put some of my thoughts into words.

    The Supremes have been in the mud of politics before, but this seems to rival 1937 and the so-called court packing plan. At that time the court was trying to preserve the 19th century; now people are trying to return to the 19th century.

    • Submitted by Misty Martin on 10/01/2018 - 12:01 pm.

      I agree, Ken. Eric always delivers. It will be interesting to see what happens next, especially after the 1 week FBI investigation. Former FBI Director James Comey just wrote an op-ed that is most enlightening. I was hoping that he would, and he too, didn’t fail my expectations. It’s in the NY Times and it’s entitled: “The F.B.I. Can Do This”. I highly recommend it.

      And Eric, I LOVED the illustration for this piece by Jaime Anderson! I wish I had one for my fridge.

      Keep up the good work! It’s hard to find anything to praise in this current administration, but at least you help us to think for ourselves and not to be deceived by those who would seek to deceive us.

  2. Submitted by RB Holbrook on 10/01/2018 - 09:15 am.

    The myth has been dead for over a century. In fact, I’m not sure people really believed it, except to give the idea lip service.

    As Mr. Dooley said back in 1901, “no matther whether th’ constitution follows th’ flag or not, th’ Supreme Court follows th’ iliction returns.”

    • Submitted by Miriam Segall on 10/03/2018 - 07:41 pm.

      Thank you, RB !! I’ve been trying to find that quote ever since the Kavanaugh nomination was announced. I think Mr. Dooley was the “mouthpiece” for a New York newspaper columnist whose name escapes me.

  3. Submitted by Ron Gotzman on 10/01/2018 - 09:39 am.

    The constitution means nothing if the character of the people it serves is lacking.

    • Submitted by RB Holbrook on 10/01/2018 - 10:35 am.

      But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

    • Submitted by Brian Gandt on 10/03/2018 - 08:32 am.

      How ironic.

  4. Submitted by Ray Schoch on 10/01/2018 - 09:41 am.

    To answer the headline’s rhetorical question: My opinionated answer is, yes.

    Ken Wedding has a point, but I’d add that it’s not just the SCOTUS that’s attempting to return to the 19th century, it’s the Republican Party. The GOP is working hard to take us back to the “good ol’ days” when a person’s value as a human being – to borrow from one of Jason Lewis’ radio rants – was determined by how much he was worth, and to a society where voting was restricted to white males, there were no taxes, (an examination of the latest House tax bill would be instructive in that regard) or regulations on businesses, particularly in regard to either honesty or public safety, and so on. The “free market” that Republicans worship and salivate over was right here in the late 19th century, and its consequences were so negative for so many that regulation was required just to keep the society whole.

    What about women? Well, in that particular universe, women in general were obviously not worth much, and I think we saw that attitude carried forward as demonstrated by the responses of Mr. Grassley, Mr. Graham, and other Republicans on the Judiciary Committee to Christine Ford’s testimony.

    We’re still dealing with “he said, she said” on the matter of Mr. Kavanaugh’s behavior as a privileged teenager, with my guess being that definitive proof either way is unlikely to be discovered. In that context, the cavalier dismissal of Ford’s obviously difficult testimony by most of the Republican Senators on the Judiciary Committee pretty much tells us all we need to know about how those old men view women, and in the process, nicely illustrates just how thoroughly political the SCOTUS has become.

    • Submitted by Karen Sandness on 10/04/2018 - 10:08 am.

      You’re right about the Republicans wanting to return to the nineteenth century. I have seen right-wing ideologues seriously suggest that people who are too poor to pay federal income tax shouldn’t be allowed to vote, because they are “sucking at the government teat” and will only vote for “free stuff” for themselves.

      This puts them somewhere in the 1830s.

  5. Submitted by Eric House on 10/01/2018 - 10:38 am.

    it seems to me there is a difference between ‘apolitical’ and partisan. I don’t know that anyone who pays attention to national politics ever really thought of the court as ‘apolitical’, but the explicit party partisanship of Kavanaugh (and to a lesser degree Alito & Gorsuch) is a new thing. I disagreed mightily with Justice Scalia, but I never believed he would side with the Republican party, just because they were the Republican Party. I agree mightily with Justice Kagan- but I don’t believe she will agree with the Democratic party, just because. Kavanaugh explicitly testified that he would have his revenge against the Democrats- and that is wrong.

    • Submitted by Curtis Senker on 10/01/2018 - 11:32 am.

      “Kavanaugh explicitly testified that he would have his revenge against the Democrats…”

      I think we all would appreciate it if you could cite the source for that statement.

      No wonder no one knows what the heck is going on. Sheesh.

      • Submitted by Tory Koburn on 10/01/2018 - 11:54 am.

        “You sowed the wind for decades to come, and you will reap the whirlwind… what goes around comes around.”

        Source: the freaking hearing.

        • Submitted by Curtis Senker on 10/01/2018 - 12:20 pm.

          You’ve misquoted him (imagine our surprise).

          “You sowed the wind for decades to come. I fear the whole country will reap the whirlwind.”

          He is clearly speaking to the Roman circus Senate confirmation hearings have become. For decades to come, only gladiators will step up to run the gauntlet, and that precludes some very viable thinkers.

      • Submitted by Dennis Litfin on 10/01/2018 - 12:30 pm.

        Curtis…..Kavanaugh specifically used the term “Democrats” in his various heated responses. Did you not watch the proceedings ?

        • Submitted by Curtis Senker on 10/01/2018 - 01:03 pm.

          Did he say, anywhere or any time, that he planned to use his position to deal out payback? Because that’s what the comment I responded to said.

          Y’all are struggling to make this something it’s not….kind of a pattern, IMO.

          I fully expect many of the, IMO, sketchy decisions that have bolstered the lefty agenda to fall. But that’s (again IMO) because they read something into the US Constitution that isn’t there, not because it’s payback.

          It’s really not helping your cause to put quotes around things people never said, or imply your opinions are fact…It’s just not.

          • Submitted by Edward Blaise on 10/02/2018 - 03:29 pm.

            He fully believes his troubles are more the fault his perceived enemies: Democrats and Clintons than Christime Blasey Ford.

            We know this because he said so. And Mr Senker asks us to accept that even though he has pure conviction of a conspiracy out to get him, he is much to professional to ever let cloud this judgement.

            Sorry, we saw the unvarnished, no holds barred, B Kavanaugh last week and that is who he is.

  6. Submitted by Tory Koburn on 10/01/2018 - 10:57 am.

    Should Kavanaugh be appointed, fully 4 out of 9 justices will have been appointed by presidents who lost the popular vote. Two of the nine will have been credibly accused of sexual misconduct. Remarkable!

    Have we really paused to consider the fact that out of the three branches of government, the only one that is unelected is the only one which has even a veneer of public credibility?

  7. Submitted by Curtis Senker on 10/01/2018 - 11:28 am.

    Oh, come on now. Who does the author think he’s kidding?

    What Judge Kavanaugh’s confirmation next week signals is the end of the judicial pipe line for leftist shenanigans they could never get passed in Congress. And that is a very good thing for our Republican Democracy.

    That being said, I’d be in favor of replacing Ginsberg with a left of center judge. We need a court that defends the constitution, but not an echo chamber. A vocal yet toothless leftish minority has it’s uses, IMO.

  8. Submitted by Charles Holtman on 10/01/2018 - 12:12 pm.

    There’s this piece of writing called “Bush v. Gore” that you may wish to read. A mortal blow perhaps, but if so, delivered to a body long drawing only the slightest quivering breaths.

  9. Submitted by Bill Mantis on 10/01/2018 - 01:20 pm.

    And we can also all agree that the Federalist Society is one of the least apolitical organizations in the nation—not to mention, one of the organizations most out-of-step with mainstream political values/opinions. Kavanaugh would be the fifth Federalist Society member on the Supreme Court. Five out of the nine who come from a tiny, elitist, totally unrepresentative segment of society. If you wanted to de-legitimate the Supreme Court, this is exactly the way you’d go about it.

  10. Submitted by Connie Sullivan on 10/01/2018 - 04:09 pm.

    I just read long article about how the legal principle that says that if a witness is definitely lying about one thing–however little–a jury can assume that he’s lying about other things. Or lots of things. Big things.

    The way to get beyond a “he said, she said” stalemate is to consider which one of the two Thursday witnesses, Ford and Kavanaugh, has been shown to be lying in their sworn testimony to the Senate Judiciary Committee. A lengthy consideration of Kavanauigh’s material lies to that Committee, just on the basis of the public testimony, proves to me that, as the author also concludes, this man doesn’t belong on any court, much less the Supreme Court. Lying about a whole slew of smaller things, Kavanaugh leads us all to disbelieve his denial that he tried, with Mark Judge, to force Christine Blasey into a “Devil’s Triangle” [sex between two men and one woman] on the evening of July 1, 1982.

    So, is Kavanaugh gets confirmed, one-third of the men on the Supreme Court will be under the dark cloud of probably being sexual abusers.

    Surely, there’s another conservative candidate who can get through, right? Gorsuch was approved a year ago. We don’t have to have Kavanaugh.

    • Submitted by Curtis Senker on 10/01/2018 - 04:29 pm.

      “The way to get beyond a “he said, she said” stalemate is to consider which one of the two Thursday witnesses, Ford and Kavanaugh, has been shown to be lying in their sworn testimony to the Senate Judiciary Committee”

      Well OK, let’s play that game.

      It was definitively proven that Ford’s supposed fear of flying only applied when it suited her leftist supporters on the Senate. She’s flown all over the world, and flies regularly for work.

      Although is was not proven she refused to fly to stall the investigation, it was proven she lied about her aviophobia.

      Falsus in uno, falsus in omnibus.

      Your turn.

      • Submitted by RB Holbrook on 10/01/2018 - 05:04 pm.

        I would think the improper leaking of grand jury testimony would have been enough to do him in, but here goes.

        It has been definitively proven that Judge Kavanaugh lied about:

        His use of e-mails improperly taken off the Democratic Party’s server;

        His role in advising the Bush Administration on detention and interrogation policies;

        His role in the nominations of Judges Pryor and Pickering;

        His drinking habits;

        His admission to Yale; and most laughably of all,

        Growing up in a city “plagued by gun violence and gang violence and drug violence.”

        But yes, some cable news outlet told you that Dr. Ford said she was afraid of flying but flew anyway. Off with her head!

        • Submitted by Pat Berg on 10/04/2018 - 11:35 am.

          On lying:

          It hasn’t been getting pointed out nearly enough that the thing that got Bill Clinton impeached was NOT what he and Monica Lewinsky did – it was that he LIED about it to Congress – under oath.

          Seems to me the same standard should apply for Brett Kavanaugh.

          • Submitted by RB Holbrook on 10/04/2018 - 11:55 am.

            With the added wrinkle that the lying was done in the course of an investigation regarding sexual misconduct. That investigation, of course, was the one in which young Mr. Kavanaugh made his bones as a right-wing attack dog.


      • Submitted by Paul Brandon on 10/01/2018 - 05:30 pm.

        Many people fly despite their fears because it’s necessary (it would be nice if we had a functional rail system like the Chinese and Europeans).
        That’s one of the reasons why so much alcohol is consumed on airplanes.
        It’s your assumption that she lied, not a proven fact.
        Says more about you than her.

  11. Submitted by Dennis Litfin on 10/01/2018 - 07:36 pm.

    Sorry Curtis, it is you Trumpers who are getting your shorts in a knot in fear of losing a clone appointment, wanting to rush through someone who is obviously very unqualified to serve on a Court where one should make an eclectic decision on crucial matters which will have a effect on the entire Country.

  12. Submitted by Harris Goldstein on 10/02/2018 - 08:02 am.

    After his diatribe at the hearing;

    “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. and millions of dollars in money from outside left-wing opposition groups.

    He would, at a minimum if confirmed, have to recuse himself from many of the cases likely to come before the court (such as the emoluments case being litigated).

  13. Submitted by Jon Kingstad on 10/02/2018 - 02:16 pm.

    Eric asked: Did last week deliver a mortal blow to the myth of an apolitical Supreme Court? I think the quote from the nominee about “This whole two-week effort has been a calculated and orchestrated political hit, . . .etc.” and about “revenge” and “millions of dollars from outside left-wing groups” really provides a glimpse into the clueless mindset of the right. As if this moment of Brett Kavanaugh’s nomination and confirmation was not all about the culmination of a forty year political campaign to overrule “Roe v. Wade” and some other opinions that have stuck in the craw of the right. As if the GOP’s political cute trick of refusing Obama’s nominee of Merrick Garland even a hearing was some sort of statemanship, whereas allowing any questioning of the fitness of this nominee for this office is a “hit job” on someone who obviously feels entitled, a right, to hold this great office.

    So I think yes, last week was a mortal blow to the myth of an apolitical Supreme Court but really in the sense of the coup de gras of that myth, but mainly for those the clueless right call “leftists”. Because the right abandoned that myth long ago with the belief that somehow it could achieve by political means the overturning of decisions, like Roe v. Wade, without destroying the myth that its decisions removed those decisions from divisive, partisan politics. It’s like thinking that you can only save a village by destroying it.

    So, when Brett Kavanaugh said “You sowed the wind for decades to come. I fear the whole country will reap the whirlwind.” he was really talking to and blaming the wrong people. He should have been looking in a mirror and turning it to the Republican white men who were voting to recommend his confirmation. He and they have sowed the wind for at least four decades now and it”s all of us who will be reaping the whirlwind of their abuse of power, their arrogance and blindness for many years to come.

  14. Submitted by Susan Lesch on 10/02/2018 - 02:32 pm.

    I don’t understand how Rachel Mitchell can presume to write an unbiased opinion after her role in the hearing was aborted. Republican senators questioned Kavanaugh. not Mitchell, who for the most part only questioned Blasey Ford.

    • Submitted by RB Holbrook on 10/02/2018 - 04:10 pm.

      She was not brought in to be unbiased. She was brought in to do a hit on Dr. Ford. Ms. Mitchell approached the matter as a criminal prosecution, not a legislative inquiry.

      A former colleague of Ms. Mitchell’s–one who considers her to have been his mentor–gave a pretty scathing critique of her performance. He called her memo “disingenuous,” and said that he was “disappointed to her.”

      Here’s a possibility that just occurred to me: Was she auditioning for a better role? Did she think/was she told that a bravura performance doing a hatchet job on a liberal could lead to some kind of presidential appointment? U.S. Attorney? A judicial appointment, or perhaps something big in the Justice Department?

  15. Submitted by Edward Blaise on 10/02/2018 - 03:38 pm.

    I see a flicker of hope when I recall the ObamaCare vote and Robert’s vote to save it. Robert’s knew that if a decision of that significance was just one more 5-4 rubber stamp the SCOTUS would be badly scared and he stopped it: voting for the best interests of the court and nation over his personal preferences. And while I doubt Kavanaugh has that kind of integrity, I am betting we will not see Roe V Wade overturned on a 5-4 vote during the Robert’s court. We will see countless other 5-4 GOP political decisions though….

  16. Submitted by Paul Udstrand on 10/04/2018 - 09:06 am.

    Forgive me if someone already pointed this out but anyone who thinks something happened “last week” simply hasn’t been paying attention. Republican’s launched this crusade decades ago and while Trump et al lend a distinctly bizarre flavor to the affair Trump doesn’t control the Senate. Grassely, Graham, etc. etc… these guys have been around for decades and this is THEIR show. Trump just tweets about it but you have to look at where this nomination came from? This was list right wingers have been working on for decades, and it’s a list I’m sure Trump didn’t even know existed until he needed a nominee.

    If you really think something “just” happened last week, you’ve been living in a bubble for decades. The REAL problem is that we’ve had bubble people running the country for decades, that’s how all the OTHER conservative hacks got on the bench in the first place.

    And yes, this is reason# 732 why it was more important to keep Trump out of the White House than it was to give HRC her “turn”, but too many centrist Democrats didn’t see it that way.

  17. Submitted by Gary Fredrickson on 10/07/2018 - 01:40 am.

    Thank God for centrist democrats. I find it very sad that some people have to belittle others that have differing opinions than they do. Some posters here have used terms like “conservative hacks” and “clueless mindset of the right” As one of the “clueless” people I believe that the Constitution was written by very learned people who understood how hard it would be to keep this wonderful idea for a nation alive. I was thrilled when president Trump said he would nominate judges who would adhere to the intent of the Constitution. This seems to terrify some people! I had no opinion on Kavanaugh previous to the hearings but the ensuing circus started by Dianne Feinstein has solidified my, and many other’s support for him. If the Socialists and the people who don’t like original intent don’t like Kavanaugh, he must be OK. I know patriotism and capitalism are dirty words here in Minnesota but hey, I guess I’m just clueless……. and deplorable. Not smart like HRC voters.

    • Submitted by RB Holbrook on 10/07/2018 - 02:39 pm.

      “I was thrilled when president Trump said he would nominate judges who would adhere to the intent of the Constitution.”

      The Constitution was originally drafted in 1787, by a group of men with widely divergent economic, social, and political interests. Over the next 205 years, it was amended 27 times. The most significant amendments were adopted four years later, with the ratification of the Bill of Rights, and then between 74 and 78 years after that, when the Civil War Amendments were ratified.

      To say that there is a single, discernible “intent” behind the Constitution is something only a very stable genius could do.

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