Injustice System

US Supreme Court nominee Brett Kavanaugh. Washington, 18 September.

Brett Kavanaugh – a man who stands accused of several instances of sexual battery — might be confirmed as a Supreme Court justice, a position that one may hold for life, a position where one can cast decisive vetoes of both executive and legislative decisions, both federal and local.

There’s a lot to unpack about a man who oozes entitlement — from his hard partying and prep school youth to his rage against being subjected to the same investigatory process that would apply to a common citizen. The frustration of women — who endure a system that either doesn’t believe them about their trauma, or worse, doesn’t care — is one of the most palpable aspects of the liberal reaction to Kavanaugh’s appointment and the Republican Party’s indifference to his accusers. As of this writing, the senate has announced that it will delay a full vote on Kavanaugh until a weeklong investigation is completed, jeopardising Kavanaugh’s confirmation. But he is still very much in the game.

It’s cliché at this point in the Trump Administration, still less than two years old, to mark every act from the detention of migrant children to the travel ban as a death knell for the republic. The Kavanaugh drama is not some final gasp of America but a terrifying signifier of the dual justice system.

When I mentioned this several days ago, another journalist countered that we’ve seen many of these moments, especially in response to unpunished police killings of innocent black men. Even during the riots in Ferguson, Missouri or Baltimore, one could still dismiss them as tragic local problems — “If I don’t live in Baltimore, maybe it’s not really my problem.”

With Kavanaugh’s confirmation process, there is a binding national injustice. A Senate committee has told all Americans, whether they are rural or urban, Democrat or Republican, that there is a callous prosecution for the 99 percent, and immunity and power for the 1 percent and their state agents.

What we’re seeing isn’t a corruption of some august institution, but a naked reminder of how reactionary the Supreme Court inherently is. With the exception of the tenure of Chief Justice Earl Warren – which was key in ushering in civil rights — the court has historically been a counterweight to progress, infamously entrenching slavery before the Civil War and establishing Jim Crow after it, sanctioning the internment of Japanese-Americans during World War II and resisting the Franklin D. Roosevelt’s administration’s New Deal reforms.

Today, under Trump, America’s top court has thrown its weight behind the more fascistic elements of the American right in this last court session, most notably by ruling in favour of the administration’s anti-Muslim travel ban and the kneecapping of labour unions. Kavanaugh is the norm.

It’s well known that the American government has a system of checks and balances, where one part of government restrains another, but what’s less noticed is that these are usually checks by state power over popular will. Nowhere is this more apparent than with the judicial system. A judge is appointed by a president — who is elected not by a popular vote but by a small electoral college — and confirmed by the Senate, a council of elders that acts as an anti-majoritarian check on the House of Representatives.

Administrations come and go, but Kavanaugh’s reactionary ideology will rule Americans for decades if confirmed. We might ask why we grant the justices such a luxury.

The American founders’ idea was that not imposing limits on their time on the bench would insulate them from politics — lifting court judgements above the fray — and allow judges the time to hone their decisions. But this was crafted at a time of shorter life expectancy. As The Big Think notes, “Justices serve on average for 16 years. However, when we only take into consideration justices from after the 1970s, the average jumps to 26 years.” That’s a quarter of a century of unchecked power.

One once had to visit the more obscure fringes of the far right to hear phrases like “The US is a republic, but not a democracy,” but Kavanaugh’s rise demonstrates very clearly how much of federal power is sheltered from popular will. The people can complain all they want, but the system has no obligation to listen.

The broader shock from the Kavanaugh affair is that Americans really don’t live in a democracy, that citizens have limited agency to constrain the forces that dictate their lives. And an even broader shock is that there are a great many people in this nation who are all right with this.

Photograph courtesy of Ninian Reid. Published under a Creative Commons license.