Jedediah Purdy —
Judge Brett Kavanaugh, now very close to controlling the decisive vote on the Supreme Court, resembles other candidates for high political office. He has a constituency–the Federalist Society, anti-abortion activists, everyone who hopes to see Obamacare weakened and affirmative action ended–and other constituencies in opposition. Lots of money is being raised and spent for and against his confirmation. He has a set of commitments that are plainly at the center of national controversies–over the issues already mentioned, and also over the role in money in politics, the future of criminal justice and environmental, and no doubt a great more that we may not exactly “know” from his judicial record, but which is pretty confidently inferred from his outlook and affiliations. His confirmation, in other words, is a lot like choosing a senator, except that he’ll be much more powerful than almost any individual senator–and never has to answer to voters, now or in the future.
Nonetheless, it has been an article of faith–or at least a relentless rhetorical trope–on both sides of the fight that “politicization” of the judiciary is a kind of corruption and crisis. What distinctive judicial or rule-of-law values draw the line between a court, with or without Judge Kavanaugh, and other aspects of politics? What does it mean to say, as Amy Kapczynski does in her opening post, that courts are political, but not in the same way that politicians are?
Amy’s answer is that courts “morph” politics into “universalizing argument,” giving reasons for their decisions that are supposed to apply to everyone, and that this helps to articulate a picture of a political community that is “ours,” that has a “we.” (She disclaims the thought, implicit in some defenses of courts, that there is anything in legality itself that will produce liberal or left-leaning results: procedure and universalizing efforts at neutrality are not, she tells us, independent of visions of justice or the good society.)
I think we have to look into the abyss and admit the possibility that politics really does come first, that the question is not for or against politicization, but what kind of politicization. My reflections are meant in a spirit of earnest joint inquiry, and of uncertainty. (As I sometimes feel obliged to say on Twitter, tweets do not imply self-endorsement.)