Legitimacy: A Question for the Supreme Court.

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We know this text. It is the first part of the Declaration of Independence. What rarely comes into the conversation is what this paragraph speaks off. This is the concept of legitimacy. The Crown under King George III was not seen as one that should make decisions by the colonists. It lost its right to rule, under the eyes of the people who signed that document. In other words, it had lost legitimacy.

So what does this have to do with the United States Supreme Court? I will argue a lot. It is in the midst of a crisis, that will leave it as a body that is not respected, and its decisions will be stained.

How? Enter Merrick Garland. The Republican majority kept hin from having any hearings when he was appointed by President Barack Obama. We even were told a theory that does not exist. This was near a presidential election, therefore a vote should be left until after the election. It was a way to keep that set open for a Republican president and was not less disgusting than the efforts by Franklin Delano Roosevelt to pack the court decades ago. It is perceived as a stolen seat, so Neil Gorsuch occupies a seat that Democrats believe belonged to them. It was political hardball, but one that has damaged the court.

Then we have Clarence Thomas who was accused of sexual harassment by Anita Hill. This was over nineteen years ago, and the stain has not left. In fact, almost every time Justice Thomas is mentioned, Hill is there, lurking in the shadows. However much they try, Thomas will forever be linked to that testimony. His tenure on the high court is seen by some as less than stellar and illegitimate for that reason as well.

Now a second woman has emerged regarding Thomas. Her name is Moira Smith, and there are some muted calls to impeach Thomas. The allegations are just that, for the moment. However, they follow a well known pattern. Women who are sexually harassed or assaulted, rarely report these events. Incidentally, the same goes for males. Why? They will be questioned, and like is happening now with Professor Christine Blasey Ford, the victim’s motives are immediately questioned.

Enter Brett Kavanaugh. The defense offered by those who want him on the high court range from denials, to well, boys will be boys. And of curse, my favorite one…it was over thirty years ago…people change. Remember, the same happened with Thomas, and that was ten years in the past, and in an office setting. So the pattern should not shock anybody.

So here is the problem before the country. Do we want a second Justice that will have a dark cloud hanging over him? Because I guarantee it, this will not go away. Kavanaugh will have Ford lurking in the shadows until the day he dies.

The far right has an agenda afoot, and they are willing to pay a high cost to achieve it. This includes placing doubt and casting questions on the legitimacy of the United States Supreme Court. This will lead to a crisis in the judicial system.

Democracies not only need, but require the consent of the governed. They need legitimacy. If the decisions are seen as hyper-partisan and tainted by lack of authority, then what happens to the country? So far the presidency and congress are facing a similar crisis of trust.

Nor am I the only one raising this question. Chris Cuomo did yesterday on CNN. It’s been bothering me for a couple of days, because civilization is a thin veneer, and collapse can and does happen from time to time. We may be watching the kind of collapse that other nations have seen. And regarding the courts, we are also seeing the kind of dangerous packing towards one ideology that could make the system make things very legal, including genocide. You think I am exaggerating? Ask nations around the world who have carried it out.

So yes, short term the far right will get their goal to overturn laws they do not like. The long term consequences might make them realize they made a historic mistake. I am not saying that we will face a revolution in the actual 1776 style. But we will face intense backlash at the voting booth if we are lucky. These kinds of very unpopular policies create the conditions for collapse. And when the courts stop being a recourse for the voiceless, then options start to disappear.

Nor is this the first far right wing court in the history of the country. In fact, the court has been extremely conservative for most of its history. However, it had legitimacy in the eyes of the governed. It is losing that, and quickly. They may find that this bed they are making is full of thorns…

Written by

Historian by training. Former day to day reporter. Sometimes a geek who enjoys a good miniatures game.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store