There is a puzzling line of argument emerging in the aftermath of the battle over Brett Kavanaugh. Now that the balance of power in the Supreme Court is swinging towards originalism, there is grave concern over the Court’s alleged “legitimacy.” Even though each person on the Court was nominated and confirmed through entirely constitutional processes, there is now a “cloud” because of entirely unproven allegations against two justices. Even though there was nothing at all unconstitutional about the Senate’s refusal to consent to Merrick Garland’s nomination, there’s a further “cloud” because of an allegedly “stolen” seat.
Not one of the three branches of government has violated the Constitution. Each of them has fulfilled its constitutional role. Yet now we hear dark warnings that the Court is damaging itself beyond repair.
Those warnings are wrong. Those warnings depend on a fundamental misunderstanding about the operation of the law in 21st-century America. Those warnings also depend on selective amnesia about the operation of the law. Because, let’s not forget, when the Supreme Court has issued unpopular progressive rulings that have overturned democratically enacted statutes or disrupted social norms, in progressive eyes the Court was never more legitimate. It was an intellectual and moral elite, operating at the vanguard of social justice.