The Court

By dying when she did--I seemed to hear a favorite of Praetorius playing in the background--Justice Ruth Bader Ginsberg finally did her country a real service.  After many years of working to turn the Supreme Court into a second and all-powerful legislature, she cleared the way for President Trump to nominate a real judge, one who will seek to interpret law rather than make it.  Amy Coney Barrett is an admirable choice and should be confirmed quickly.

The Democrats complain and say the next President should make the choice.  Everyone knows that if circumstances were reversed and a Democratic President and Senate had a Court vacancy and faced an election, they would do the same thing and act before the vote.  That is all within the normal course of American politics.

The Democrats’ threat to pack the court is something else altogether.  It is a direct threat to the Supreme Court’s legitimacy.

It continues to astonish me that no one in Washington, Democratic or Republican, can grasp that the legitimacy of states everywhere, including here, is wearing thin.  So focused are they all on court (small c) politics, life inside the Beltway, that they do not see the hungry and increasingly angry eyes looking in the windows.  They do not doubt the legitimacy of the system that made them rich and powerful, so how could anyone else?  This is blindness that comes before a very great fall.

For many years polls have shown the public has little respect for Congress.  Presidents are respected (well, sometimes) by their own party and less so by the other.  But central to the legitimacy of the state itself is the legitimacy of the court system and especially the Supreme Court.

Because the Supreme Court has established its power to overrule both the legislative and Executive branches of the government--which may not have been the intent of the men who drafted our Constitution--it is the final resting place of the system’s legitimacy.  So long as the public has widespread confidence in its probity and objectivity, the system has at least some basis for its legitimacy.  Take that away and what remains?

That has been the great risk run by the liberal Justices, including Justice Ginsberg, presumably without knowing it.  Every time they invent new meanings to the Constitution, often in direct contradiction with what it says, they strike at the Court’s legitimacy and that of the state itself.  By seeing “penumbras” to the Constitution, interpreting the Commerce Clause far more broadly than the Founders intended, and adding new powers to the federal government beyond those enumerated, thus stealing from the states, they make the Court’s legitimacy questionable to growing segments of the population.  What happens when those segments add up to a majority?

Nothing would strike more powerfully at the Supreme Court’s remaining legitimacy than the Democrats’ proposal to pack the Court with new, liberal justices.  Who on the political Right would accept any ruling from a packed Court?  Once the legitimacy of the state is upheld by only one party, the state’s continuation becomes itself a partisan issue.  Because the political balance always shifts with time, at some point those who have rejected the state’s legitimacy will be in power.  What then?

In America and elsewhere, if the state is to survive, those in power must start paying attention to the question of legitimacy.  They simply assume it, but the days when they could do that and get away with it are ending.  All over the world, people are transferring their primary loyalties away from states to a wide variety of other things:  religions, ideologies, races, business enterprises, etc.  If the state attempts to suppress them with force, they fight back--and often win against state forces who are fighting for no more than a paycheck from a state they themselves despise.

If by packing the Supreme Court the Democrats destroy the legitimacy of that institution, the place where the American state’s legitimacy now most resides, they will pull the temple down on their own heads.  Justice Ginsberg’s replacement by Justice Barrett is normal politics.  De-legitimzing the Supreme Court in the eyes of half the country’s population is not.