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My first stab at writing about our newest Supreme Court Justice Brett Kavanaugh was from the perspective of my “frat boy” experience ten years before Brett allegedly made a habit of getting black out drunk in college. The crappy behavior I witnessed during the age of Aquarius was not unlike the self-entitled depredations Kavanaugh has been accused of in the Reagan Era. Experience leads me to believe that our newest justice was as guilty of attempted rape as OJ Simpson was of murdering his wife. If I’m right that’s a triumph for the “rule of law” which can be greatly diluted if one attends prestigious universities and/or has plenty of money.
That rule begins with our Constitution which John Marshall’s Supreme Court announced it would be the arbiter of. President Jefferson, a proto Republican, was not happy with this decision handed down in Marbury vs. Madison. It threatened the legislation that the Jefferson oriented Congress might pass and did so without clear language in the Constitution granting the Court to wield this power. The Court’s power grab has never been successfully challenged and is now a reliable precedent. One legal principle that protects the Court’s authority is called stare decisis. Stare decisis is Latin. In legalese it means that long standing court decisions are given great deference as “settled law.”
I find it ironic that the late Justice Scalia never had a problem with the Court’s usurpation of this power. He was after all an “originalist” meaning that he ferociously defended the sometimes-archaic language of the Constitution. He especially resented any liberal interpretation of its provisions. Scalia was dedicated to preventing “liberal” judicial activism. He did not agree with the liberals who found a right of privacy in the Constitution in the Roe v Wade decision. I would have been more sympathetic with this attitude had he not seemed to turn a blind eye to “conservative” judicial activism. In particular, I found it interesting that the State’s rights loving Republicans on the Supreme Court overturned the courts of Florida to guarantee that George W Bush was elected President.
The appearance of naked political power grabbing makes people understandably nervous. In the 1850’s a southern dominated Tawney Court poured gasoline on a brewing Civil War by setting aside state laws forbidding slavery in the North in the Dred Scot Decision. Thirty years after the Civil War the Supreme Court was once again notoriously friendly to the White South. In 1896 it ruled in Plessy v. Fergusson that racial segregation was OK. That precedent was disemboweled in 1954, after sixty years of stare decisis, by a court headed by a Republican Chief Justice, Earl Warren. That case was Brown vs. Board of Education of Topeka.
Ironically, the most dedicated state’s rightest on the Supreme Court for the past several decades has been black Republican, Clarence Thomas. How he might have acted had he not felt humiliated by the Anita Hill hearings I don’t know. His sin back then struck me as being a terribly inept flirt with women. Yes, Thomas was in a position of power but even so his offense, if true, was a far cry from the accusation of attempted rape leveled against Kavanaugh. The smarting Justice Thomas later married a conservative white Republican activist who tried to get Professor Hill to recant her testimony. Ms. Thomas helps her husband keep his grudges fresh.
Certainly, many pundits feel Brett Kavanaugh will follow Thomas’s example and with good reason. Unlike Thomas, Brett Kavanagh’s early political life was one of extreme partisanship. There have been credible allegations that he bent the law to undermine both Bill and Hillary Clinton. More such charges may appear as time goes by. No Supreme Court Justice has ever been watched with as much suspicion as is likely to be directed at Kavanaugh.
I can’t predict what Kavanaugh’s role in the Court will be. What will he do if, in ten or fifteen years, the Republican Party changes course, implodes or devolves to an alt right rabble?
There is another example of an embarrassed Supreme Court justice than the one Clarence Thomas offers. His name was Hugo Black. Black was an Alabaman and a dedicated New Dealer. When Franklin Roosevelt nominated him to the Supreme Court in 1937 several Democratic colleagues accused him of being affiliated with the Ku Klux Klan. 16 Senators, ten of them Republicans, voted against his confirmation.
Thirty years later when I was in High School, Justice Black had become the most ardent liberal on the Court. He was Mr. ACLU which is now one of the Republican Party’s favorite punching bags. Black was my hero.
It’s possible that Kavanaugh might someday prove that he is not a political hack. I won’t be holding my breath but it’s not out of the realm of possibility.
Harry Welty is a local eccentric and perennial candidate for office in Duluth who also pontificates on his blog: www.lincolndemocrat.com.