“We’ll take this all the way to the Supreme Court!” is an oft-repeated phrase in Hollywood, and probably something that actual lawyers say on occasion, as well. But if and when Brett Kavanaugh is sworn in to replace Anthony Kennedy, for a lot of activist lawyers — those supporting abortion rights, environmental protection laws, the right to bring criminal charges against a sitting U.S. President — the statement will be largely meaningless. They can take it to the Supreme Court all they want, but with a conservative majority, it’s not going to change the outcome.
I don’t think Kavanaugh is a “bad” guy. He’s kind, according to NPR’s Nina Totenberg, and he is clearly intelligent. That’s the problem with guys like Kavanaugh and Gorsuch, really. Our politics are vastly different, but you can’t really argue that they’re not qualified. If Merrick Garland has been confirmed, as he should have been, I’m not sure that I would raise as much objection to Kavanaugh. Fair is fair. They won. We lost. They get to pick their guy. It sucks that we don’t agree with him politically, but that’s the game.
But fair is not fair. Democrats have won the popular vote in four of the last five elections and despite that, Republicans will have chosen four of the last six Supreme Court Justices and one of those was robbed from a Democratic President. The will of the people genuinely is not reflected in the makeup of the Supreme Court. A large segment of America are nativist, pro-life, anti-LGBTQ, but a larger segment is more progressive and humane and supportive of abortion rights. Fair is not fair.
But when has it ever been? If you’re poor, black, a woman, trans or gay, fair is rarely fair.
Will the Supreme Court actually be lost for a generation if Kavanaugh is sworn in? Maybe not quite for a “generation,” but for a long time. Clarence Thomas is 70, the oldest sitting conservative judge, and we’ll probably have to wait for him to retire before we can change the composition of the court again. In the meantime, however, we have to protect our own: Assuming Breyer and RBG can hang on for another couple of years, Democrats need to win in 2020 or the court really will be lost for a generation, or perhaps longer.
At this point, the best we can hope for over the next decade or so is that John Roberts will soften. That he somehow becomes another Souter — a Supreme Court Justice chosen by a Republican who leans left on occasion. Roberts is a smart guy, too — and whatever else one wants to say about the Supreme Court, law students will not lack for intellectual rigor — and now that he is the Chief Justice and also the swing vote, perhaps the weight of that responsibility and the understanding that the country as a whole leans to the left will steer Roberts toward, at the very least, maintaining the status quo. I am not optimistic, but I remain ever hopeful that at the very least, precedent means something to him. My guess is that ultimately Roberts will uphold Roe and the right to an abortion, but that he will chip away at it until there is practically nothing left, that women in a state like Texas could theoretically obtain an abortion but that the clinics will not exist, and if they do, that abortions will have to be obtained within the first month of pregnancy and that the pregnant woman will have to undergo 29 days of counseling first. In other words, that abortions will remain theoretically legal, but practically impossible.
Elections matter, and while there’s not a goddamn thing we can do about the last one, we better get off our asses and make a difference in the next ones.