We will never agree on a single approach. An all-of-the above strategy is both sensible and inevitable.
In the rightly acclaimed tv series The Americans, two Soviet agents live undercover in the US for many years under the identities of Philip and Elizabeth Jennings. They pose as mild-mannered travel agents by day while committing acts of political sabotage and murder by night. They arrive in the US as committed communists in the 1960s, but by the time the show opens in the early 1980s, Philip has grown fond of suburban American life and its creature comforts. The conflict between Philip and Elizabeth over how committed each remains to the cause of global communism fuels much of the show’s gripping narrative. By the time the sixth and final season opens, Philip has quit working for the KGB, as he has grown wary of its efforts to undercut Gorbachev’s reforms and peace overtures. He has become his cover. Elizabeth, by contrast, remains a true believer.
That division can serve as a metaphor for two polar attitudes of various liberal constitutional lawyers now that Brett Kavanaugh has been seated on the Supreme Court. We were never Soviet communists; we placed our faith in the Supreme Court. Despite all evidence to the contrary (Bush v. Gore; Shelby County v. Holder; Citizens United v. FEC; Trump v. Hawaii; etc.), we still believed in the Court as a potential force for good.
Is Kavanaugh the last straw? A prominent constitutional scholar recently told me that, in light of the Senate’s confirmation of Kavanaugh, maybe it’s time for us to find a new field — commercial law, perhaps — in which the rulings of the Supreme Court play no substantial role. Having lost faith in the Court as a force for good, this scholar considers the path of Philip Jennings. Doing so might well be good for our personal wellbeing, but it would also be a kind of giving up.
Meanwhile, another prominent scholar suggested that, whatever distaste we now have for Kavanaugh and the route he took to the Supreme Court, we need to keep our noses to the grindstone to minimize the damage; although we will now see the most conservative Court in living memory, we have had a half century of a Republican-dominated Court, so it’s not exactly as though we lack experience making lemonade from lemons. That’s the path of Elizabeth: put your head down, and do your job.
Is there a middle course? Something other than, on one hand, abandoning the field of constitutional law and, on the other, acting as though it’s business as usual? Absolutely. To see what options are available, however, we need to be clear-eyed about the coming challenge.
After Donald Trump’s surprise victory in the 2016 presidential election, I wrote a glass-half-full column in which I tried to assure my friends (and myself) that life under Trump would be bad but not appreciably worse than it would have been under a generic Republican president. Re-reading that column today, I see that I underestimated the commitment of Trump and his followers to the Trumpiest elements of his program — especially the Muslim ban and gratuitous cruelty to undocumented and documented immigrants alike. I also underestimated the impact of the forces that would be unleashed by the shift from standard Republican dog-whistles to Trump’s uncoded racism (“very fine people on both sides”).
Duly chastened by my failure to foresee the full scope of Trump’s awfulness, I nonetheless would note the many awful things Trump has done that are more or less standard Republican fare: gutting environmental regulation and the Affordable Care Act; leaving the Paris climate accord and the Iran nuclear deal; signing tax legislation skewed to the wealthy in ways that will starve progressive programs in the future; filling judicial vacancies with far-right jurists; and so on. A President Rubio or Kasich would have sounded considerably more moderate; as a substantive matter either of them might have softened one or two of the details and would not be in thrall to Putin; but overall, the policy awfulness of the Trump administration is mainstream Republican awfulness.
The analogy to Kavanaugh is striking. In a nearby parallel universe in which the president had nominated a roughly equally conservative federal appeals court judge to fill the vacancy created by Justice Kennedy’s retirement, the Senate would likely have confirmed that judge by a slightly wider margin than Kavanaugh’s 50-48 squeaker: something more like the 54-45 vote for Justice Gorsuch. That parallel-universe new justice would not vote exactly the same way as Justice Kavanaugh will in all cases, but the big-picture would be no different. In the parallel universe as in our own, John Roberts would be the median justice until any new vacancies open.
The differences between Kavanaugh and the other potential nominees that the president was considering are much like the differences between Trump and Rubio or Kasich. Like Trump, Kavanaugh has been credibly accused of sexual assault, he has exploded in petulant rage, and he has shown little regard for truth. And as with Trump, fellow Republicans issued somber statements expressing concern but when push came to shove, voted with their team.
There is, however, a key difference between Trump and Kavanaugh. Trump’s character flaws are nearly always visible. He can contain his rage for a few days when his aides hide his smartphone or distract him, but his true colors inevitably emerge. Kavanaugh, by contrast, appears to be two people.
For most of his public life and especially since serving on the federal bench, Kavanaugh has been a model of professionalism, deeply conservative to be sure, but courteous, friendly, and engaging. His Wall Street Journal op-ed was profoundly incomplete and self-serving, but the picture he painted of himself as someone who was well-liked by fellow judges, clerks, students, and law faculty across the political spectrum was broadly accurate. Even as I opposed Kavanaugh’s confirmation based on his substantive views, until recently I had the same impression of him. I wrote in August that I would be “happy to stipulate to” Kavanaugh’s “conscientiousness, intelligence, and personal decency.” I added that “I would be delighted to support him for a position on my faculty.”
That’s one face of Brett Kavanaugh, but there is another. He was a belligerent drunk in his teens and twenties. He was a partisan GOP crusader in his thirties. During his meltdown before the Senate Judiciary Committee on September 27, Kavanaugh revealed that the belligerence and partisanship still live within him. As former Yale Law School Dean Robert Post observes: “For as long as Kavanaugh sits on the court, he will remain a symbol of partisan anger, a haunting reminder that behind the smiling face of judicial benevolence lies the force of an urgent will to power.”
Post is right that “judicial temperament is not like a mask that can be put on or taken off at will.” And yet, I tend to think that, without the pressure of a direct accusation, as a justice, Kavanaugh will succeed in masking his demons where Trump, as president, has failed in masking his. Lawyers will call Kavanaugh “your honor.” Many of the faculty on law schools where he is no longer welcome as an instructor will send him fawning letters in support of clerkship applicants. And his colleagues, who have no choice in the matter, will treat him in the same respectful way that they treat each other.
The question for those of us who concluded that Kavanaugh is temperamentally unsuited to sit on the bench is whether we should nonetheless continue to play along. Should we, like Elizabeth Jennings, maintain a commitment to the cause — here the notion of the Supreme Court as a non-partisan institution? Or should we follow Philip’s example and move on to other endeavors? Is there some other course?
The answer is all of the above. A seemingly far-afield example may be useful as a comparison.
Most of my work focuses on constitutional law, but I also have some experience as an advocate for the cause of animal rights. Like other justice movements, the movement to promote the interests of non-human animals faces internal conflicts. Some people (including me) favor abolition of animal agriculture and nearly all forms of exploitation of animals. Others favor less inhumane methods of animal exploitation but not abolition. Even among those who favor abolition as the ultimate goal, differences about tactics and strategy are prevalent: Do welfarist legal measures like minimum cage sizes for hens and sows raise consciousness and thus hasten abolition, or do such measures simply further entrench acceptance of animal exploitation? In Chapter 5 of our book Beating Hearts: Abortion and Animal Rights, Sherry Colb and I find that the existing empirical evidence is inconclusive but that there are reasons to be skeptical of meliorism as a path to ending animal exploitation. Nonetheless, we acknowledge that our analysis serves mostly as a guide for individuals deciding how to spend their time, not as a prescription for the movement as a whole. No one can guide a movement as a whole.
That lesson holds for Kavanaugh as well. Professors, lawyers, activists, and citizens must decide for themselves whether and if so how Kavanaugh’s confirmation affects how they teach, make arguments, organize, and think about the Court. It presents questions of principle and tactics. Different people playing different roles will resolve such questions differently. Collectively, the response to Kavanaugh will be multifaceted, messy, and somewhat contradictory.
Kavanaugh’s presence on the Court despite credible allegations of sexual assault will serve as a potent focal point for the #MeToo movement. So will the Senate Republicans’ willingness to whitewash and ignore the allegations’ seriousness. #MeToo activists will protest Kavanaugh and the Court. They will engage in what sophisticated observers will regard as futile or even counterproductive efforts to impeach Kavanaugh and perhaps Clarence Thomas as well.
Meanwhile, public interest lawyers and others will have little choice but to pretend that everything is normal, at least as advocates. If you have a client before the Supreme Court who faces execution, deportation, the loss of health care, or some other serious consequences, what are you supposed to do? Should you refuse to answer questions Kavanaugh poses at oral argument? Should you imitate his own behavior by angrily asking his questions back at him? To avoid having to make that call, should you refuse to file a cert petition? Any of these courses of action would be a disservice to your client and probably legal malpractice. Some people have no real choice but to act as though nothing has changed.
Still others will try to steer a middle course full of awkward compromises. A liberal law professor asked by a first-rate conservative student to provide a recommendation for a clerkship with Kavanaugh might agree to do so but might also protest a campus speech given by a senator who voted for his confirmation. In teaching constitutional law, one might supplement the usual materials with additional ones that emphasize how the countermajoritarian Supreme Court turns out to be a product of constitutional flaws that make the other branches of government undemocratic as well.
All of these approaches and more will be on display in the coming weeks, months, and years. Some will succeed and others will fail, but there is no point in agonizing over the right way to respond to the new reality. We will never agree on a single approach. An all-of-the above strategy is both sensible and inevitable.
Originally published by Take Care under the terms of a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license.