Amy Kapczynski —
Thursday’s Supreme Court confirmation hearing was a stomach churning, nauseating affair. Christine Blasey Ford laid her life on the tracks, knowing full well that trains delivering important men can rarely be stopped. That was enough, but then came the turn: Brett Kavanaugh, partisan warrior. He tore into Democrats for a process almost entirely dictated by Republicans. He seethed with explosive anger, which he weaponized to advance his own career. He lied and evaded. And walked away somehow having improved his chances of being appointed to the Supreme Court.
If “courts are political,” do we have grounds to object to this display? Dani Rodrik asked a similar question on Friday in a broader frame: “How do we prevent ‘the Supreme Court has always been political’ argument from morphing into ‘judicial independence and the rule of law are political charades’? Asking for friends in Hungary, Turkey, Poland, etc.”
The question is much deeper, as he rightly points out, than our immediate American fiasco. And it is an urgent one for the LPE crowd, raised up as we were on the insights of legal realism and critical legal studies, yet committed – as we also are – to articulating a set of claims to the right and the good that could help make our democracies more fair and just.
In the coming days and weeks, a few of us will offer some ideas on these questions to see where our conversation might lead us. To start us off, I’ll expand a little on the epigrammatic answer I gave to Rodrik: “In a democratic system judges are not political in the way politicians are. They must hear all comers; give reasons; express a universal principle — they morph politics and produce universalizing argument.”
When I wrote this, I was thinking partly of a passage that I recently read in Bob Gordon’s “Critical Legal Histories.” He was writing against the formalist idea that lawyers and judges serve democracy by remaining separate from politics and focusing on internal logic and craft. Realists, of course, reject this notion and insist that law and judges should self-consciously respond to social needs. But realists also, he wrote, have “their own notion of legal ‘autonomy’: Policymakers ought to be, and sometimes actually are, insulated from immediate pressures of short-term political or economic interests so they can concentrate on their society’s long-term needs.”
Gordon was talking not only of courts, but also of entities like agencies. Bureaucrats, like judges, operate at a certain remove from the warp and woof of raw politics. This does not make them not political. But it might give them qualities that are not opposed to democracy, but in fact important to it. To bring this back to courts, a criminal trial for murder is not the same as an inquisition in a public square. While the former is not necessarily and in all instances better than the latter — and may often operate unfairly and unjustly — it is also a space where we develop practices and rationalities that define what we think is fair and just. “I won’t vote for him, he’s a Democrat” is not a wrong reason in an election, or in the Senate. But it is a wrong reason in a courtroom. And if it is not, it seems to me, we have lost something important to a democracy.
This is not to say that judges never favor one side or party for partisan reasons. Bush v. Gore of course comes to mind. But it does seem clear that they should not, and indeed that they often do not. To be a judge is to be asked to hold rank partisanship at a certain distance, and not only where individual litigants are at stake. None of the literature on judicial partisanship shows that judges vote party line all of the time.
There are other demands that we, in a democracy, rightly make of judges too. We require them to give reasons, to explain why their processes and results are correct and fair. We ask them to do this universalizing terms. (When I say “universalizing,” I’m thinking here of scholars like Butler, Laclau, and Ranciere, who describe the universal as a category that is never fully constituted. There is no universal truth, or universal unmarked subject, but the universalization of a claim is important to the act of politics.) Judges are meant to offer reasons that will apply not just to this case but the next one. And when we ask judges to engage in constitutional reason, we invite them to speak of a “We,” and to describe “our” values, in a manner that is always jurispathic, but that also creates a place of argument over who, in fact, we are.
Courts aren’t “neutral” and judges aren’t “umpires.” They rarely protect the vulnerable. They are classist and elitist and extraordinarily narrow in who sits in judgment. But might they not also hold something powerful at times — a space to reason about what is fair and right for all of us, and about what “We” we want to be? This is what I meant by saying that courts morph politics to produce universalizing arguments — and these are then contested again, and so it continues. (This is not to answer how much judicial review we want, or over what questions. Perhaps we will get to these questions in future installments.)
I am not suggesting that courts have process and rationality and so they are or should be neutral. Courts cannot be neutral as to different versions of the good. They take sides, always. This is part of why the canonical work on judicial neutrality fails. It is both descriptively true, and normatively desirable, that courts are torqued by politics. This is what I teach in my class on constitutional law, drawing on the literature on democratic constitutionalism: Our Constitution has changed many times without amendment, in part because judges are themselves shaped by the world around them and responsive to the Court’s need for legitimacy: It must be not just a Constitution but our Constitution, for it to be worthy of respect.
We the people can also rightly seek to hold judges accountable for the reasons that they give. If courts stand by while media institutions are attacked, or refuse to recognize that the gendered nature of social reproduction makes abortion an issue that fundamentally implicates our equal citizenship, then they deserve our criticism – not because they are not being “neutral” but because they are not being just, and not offering up a vision of democracy that we can live with.
Last week, Kavanaugh showed entitled disregard for the very idea that those given the awesome power of judgment must earn the respect of a “We.” He also exhibited a rank partisanship that is inconsistent with the mode of reason that gives judges a claim to that same power. Kavanaugh’s record, as I’ve written elsewhere (with David Grewal and Issa Kohler-Hausmann), shows that his values on many issues, from guns to women’s rights to corporate speech, are extreme even for this very divided country. For each of these reasons, his confirmation would be terrible for our country.
Amy Kapczynski (@akapczynski) is a Professor of Law at Yale Law School.