I was not surprised when I heard about Brett Kavanaugh’s confirmation to the Supreme Court. Indeed, I honestly was not expecting much else.
The Republicans had the votes to confirm him, and every political incentive to do so. The only issue that has ever managed to unify the factions of the GOP is the appointment of conservative justices.
On the surface of it, this seems quite the victory for the conservative movement and the Republican Party more generally. After all, they now control the White House, Congress, and the Supreme Court. Even if they lose both of the former, Supreme Court appointments are for life.
But when we take a closer look, we can find that this victory may very well be pyrrhic.
Why? Simply put, the GOP has overplayed its hand. Besides refusing to have a hearing for Merrick Garland, President Obama’s nominee for the Court, they jammed through, in this latest case, an unpopular nominee with multiple accusations against him. Kavanaugh’s approval rating is not even forty percent.
So, let us say that a hypothetical Democratic president and Congress pass some kind of universal healthcare bill. A lawsuit is filed, and the Court strikes it down. Now, people, disproportionately poor and minority, stand to lose their healthcare.
Don’t imagine that Democrats will tolerate this. The scorched-earth tactics of Mitch McConnell will come home to roost. American political norms are already collapsing as it is.
So this hypothetical president will find herself with two choices, obey an unpopular, partisan court and let her constituents lose their healthcare, or tell the Court to sod it. After all, the Court has no armies or police; it relies solely on public perceptions of nonpartisanship for legitimacy. Ironically, the very institution supposedly “immune” to public opinion is dependent on that opinion for its power.
And when the dust settles, we’d be left with a divided Congress, a collapsed Court, and an ascendant executive branch. America would be an elective monarchy in all but name.
This isn’t prophecy of course, merely hypothesis. But it would be a mistake to think that the hardline tactics of McConnell and the GOP won’t come home to roost.