March 19, 2019 | 31° F

RUTGERS AMERICAN CONSTITUTION SOCIETY: Legitimacy of U.S. high court in danger


On Saturday night, in a private ceremony, Brett Kavanaugh took his oath to become an associate justice of the Supreme Court. 

"I, Brett Kavanaugh, do solemnly swear," he began as he raised his right hand and put his left hand on a Bible held by his wife, "... that I will administer justice without respect to persons …"

His behavior and record on the bench prove he poses a threat to women, immigrants, indigenous communities and people of color

“... and do equal right to the poor and to the rich …”

Unlikely, though. He routinely rules in favor of corporations over workers. He was appointed by a president whose own financial history is sordid. Dark money groups have spent millions of dollars to push his nomination over the finish line. He has been installed on the Court to serve their interests, not those of the American people. 

“… and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as a Supreme Court justice under the Constitution and laws of the United States …”

He has lied too often about consequential and inconsequential matters for us to believe he can uphold this portion of his oath. Aside from the lies he told about references to drugs, sex and drinking in his high school yearbook, he has lied under oath nearly every time he has been summoned to the Senate floor over the last decade and a half. He lied about seeing stolen confidential emails from Democrats on the Judiciary Committee between 2001 and 2003 as reported by The Washington Post and The Boston Globe. He lied about believing Roe v. Wade was settled law, when we know he advised White House staff in 2003 against referring to it as “settled law of the land.” He lied about being involved in the controversial nominations of former President George W. Bush’s judicial candidates Judge William Pryor to the U.S. Court of Appeals for the 11th Circuit and Judge Charles Pickering to the U.S. Court of Appeals for the Fifth Circuit. He lied as well about his role in the nomination of William Haynes as General Counsel of the Department of Defense, which paved the way for the creation of Bush’s policy on torture in interrogations. 

“… and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic …”

But he has shown that he cannot do the aforementioned. As he complained tearily about the stress of being accused of attempted rape, he threatened Democrats. He yelled at them for ruining his life in a “calculated and orchestrated political hit, fueled with apparent pent-up anger about President (Donald J.) Trump and the 2016 election ...” And then he spoke about the “consequences:” “What goes around comes around. I am an optimistic guy.” 

“… that I will bear true faith and allegiance to the same, that I take this obligation freely, without any mental reservation or purpose of evasion and that I will well and faithfully discharge the duties of the office on which I am about to enter.”

We do not yet know how he will perform his role, but he has already done plenty of damage to the Court by exposing the political process surrounding judicial appointments. 

The Court’s legitimacy is fragile and closely guarded, and as a result many choose to believe the myth that the Supreme Court is apolitical. Chief justices have protected the Court for more than two centuries by reaching for consensus whenever possible. The Depression Era Court saved its legitimacy by appeasing FDR in order to prevent him from packing the Court. Chief Justice Earl Warren protected the Court by insuring that Brown v. Board of Education, the case that overturned the “separate but equal” doctrine established by Plessy v. Ferguson in 1896, was a unanimous decision. Other chief justices have preserved the status of the Court by showing that the president is not above the law. The Court unanimously decided that former President Richard Nixon needed to turn over evidence for the Watergate investigation in 1974. Twenty-three years later, the Court once again unanimously held that a president was not above the law in Clinton v. Jones. 

Only time will tell what effect Kavanaugh’s confirmation will have on the Supreme Court’s legitimacy. But, we will not soon forget that as he uttered the last words of his oath, hundreds of protestors were outside, pounding on the doors of the Supreme Court, living up to a creed of their own. 

As “KAVANAUGH HAS GOT TO GO” echoed through the streets of Washington, D.C. and pleas for help from the Senate went unanswered, the discontent of the populace eclipsed the completion of the associate justice’s swearing in ceremony. 

“… So help me God.”

Emma Pallarino, Andreina Mazzei and Mickey Vargas make up the Executive Board of the Rutgers Law School - Newark branch of the American Constitution Society. Their column, "Constitutionally Concerned," runs on alternate Mondays. 

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Emma Pallarino

Andreina Mazzei

Mickey Vargas

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