The Editorial Board has been on the margins somewhat in talking about the looming crisis of legitimacy facing the United States Supreme Court. That appears to be changing. The political debate seems to be going national. (Yay!*)

In “The Supreme Court Is Coming Apart,” the Times’ David Leonhardt wrote about three ways the court’s legitimacy can be protected and preserved. One is the easiest (though not easy): term limits of 18 years for each justice. Two is court packing, or expanding the court to more than nine justices. The third, I think, is the most interesting—for Chief Justice John Roberts to come to his senses.

Leonhardt wrote:

There is the possibility that Roberts comes to understand the peril to the court. He clearly cares about the court’s credibility, and he has shown flashes of judicial modesty, respecting both precedent and Congress. The biggest example was his split decision on Obamacare. More often, though, he has chosen radical activism.

“More often” is an understatement.

I’d say Roberts’ vote on Obamacare was the exception to a solid record of radical activism. Because it’s the exception, counting on a change of heart, simply because the court’s legitimacy is in question, seems like wishful thinking. If Roberts comes to his senses, he can’t be relied on to do it on his own. He will have to be forced.

I’ll get to how in a moment. For now, let’s remember Senate Majority Leader Mitch McConnell’s role in this. Leonhardt is right in saying the court itself is its biggest problem. You can’t keep handing down highly partisan 5-4 rulings while maintaining the court’s image of being above the fray. The nine are deep in the thick of the fray. They should concede the point or start handing down less partisan rulings.

But the high court’s crisis of legitimacy came into focus when McConnell sabotaged Merrick Garland’s nomination. It was then that the American public understood, or came closer to understanding, that the Supreme Court is fundamentally a political body. Because it is a political body, it’s hard to take seriously McConnell’s renewed interest in decency, process and decorum. When he says, “Senate Democrats and their allies are trying to destroy a man’s personal and professional life on the basis of decades-old allegations,” a reasonable reaction is shrugging and saying, “Meh.”

If I were a chief justice who claims to care about the court’s public image, I would be deeply concerned about the appearance of ramming through a problematic nominee who is facing at least three allegations of sexual assault, a nominee who will be instrumental in stripping a woman’s right to privacy, a nominee who will help set the court at odds with half the country. I would be concerned about McConnell giving the GOP base what it wants at the expense of the court’s legitimacy. I would be concerned about his radicalizing the electorate’s view of a radicalized Supreme Court.

That said, how can Roberts be forced? McConnell is answer. Despite reasonable arguments in favor of delaying Kavanaugh’s confirmation, or in favor of picking someone else entirely, McConnell appears to be going all-in, as is the president. This is sparking a reaction from Democrats I have not seen before. They are signalling a willingness to investigate him after he’s confirmed (should he be confirmed).

Given what we have seen so far, there’s a lot to uncover about this would-be justice. If the Democrats take the House, they can immediately open hearings and flex their subpoena power to expose Kavanaugh even more. That has the potential to deepen distrust of the court, a potential that could force Roberts to come to his senses.

Are there risks? You bet.

The Republicans could return the favor the next time a Democrat picks a nominee. Roberts could dig in, refusing to budge, in which case the Democrats would have to escalate their strategy, which comes with risks. It might be worth it, though, to demonstrate to the five conservatives they are not as safe as they think they are.

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Footnotes

Yay!*
Joining Leonhardt are Zack Beauchamp, Paul Waldman, Kevin J. McMahon, Lawrence Weschler and Justice Elena Kagan. Benjamin Wittes set the trend way back 2007.

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Kavanaugh and Rosenstein

Deputy Attorney General Rod Rosenstein is set to meet with the president Thursday even as Christine Blasey Ford, Kavanaugh’s first accuser, is set to testify before the Senate Judiciary Committee. This is not an accident.

Trump is trying to split out attention between two pivotal events. It might work, but we should remember that these two stories are linked. Getting rid of the man who oversees the investigation into your campaign is part and parcel of installing a justice who might prevent you from being indicted by the same investigation.

Senators who honor the rule of law, or say they honor the rule of law, will be, or should be, under pressure to vote no on Kavanaugh should Rosenstein be fired.

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Kavanaugh and health care

I have been saying that Kavanaugh’s confirmation is likely. I still think that’s the case, though the odds are getting slimmer now that three women have come forward to credibly accuse the Supreme Court nominee of sexual assault.

There is another reason the odds are getting slimmer. Last week, Independent Gov. Bill Walker, of Alaska, came out against Kavanaugh, citing the judge’s antipathy toward Obamacare, especially the law’s provision banning pre-existing conditions.

This may impact Alaska Senator Lisa Murkowski’s vote. It may also influence three red-state Democrats who voted for Neil Gorsuch last year. West Virginia’s Joe Manchin has already produced a TV ad in which he fires a shotgun at an anti-Obamacare lawsuit. I don’t know if West Virginians see Kavanaugh as a threat to health care, but if and when they do, Manchin will have good reason to vote no. If he does, we can expect him to bring other red-state Democrats with him.

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Correction

Monday’s Editorial Board referred to Rod Rosenstein as the deputy director of the FBI. That was so very wrong. Gah! He’s the deputy attorney general. I regret the error.
—John Stoehr

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