History shows that an overreaching Supreme Court, like one dominated by Trump appointees, is doomed to fail.

Brett Kavanaugh at his original Supreme Court Senate confirmation hearing. Source: The LA Times

Last week’s testimony by Brett Kavanaugh and Dr. Christine Blasey Ford in front of the Senate Judiciary Committee was a definitive moment in the development of Kavanaugh’s historic confirmation to the Supreme Court. It was significant to watch a Supreme Court nominee behave on national television in a manner that Americans had never seen before. Dr. Ford joined Anita Hill as a woman who will be remembered for decades for her eye-opening testimony on such an important national stage. In many ways, the hearing was an encapsulation of the partisanship, rancor, and reckoning over sexual assault that defines our present moment.

As the drama of the Ford hearings gave way to reticence about Kavanaugh’s likely confirmation, writers and thinkers have wondered what the effects of Kavanaugh on the Supreme Court would be on American history. Numerous writers have considered the Kavanaugh nomination’s impact on national partisanship or specific policy programs. Some have even speculated on the chances that a Court with Kavanaugh would eventually be packed and changed significantly, perhaps even into a shell of its former self. Eric Levitz of New York Magazine noted that a blatantly partisan Supreme Court with Kavanaugh on it might change the popular view of the court from “umpires in robes” to yet another “partisan policymaking body.” As Levitz writes, “The conservative movement may win the battle over Brett Kavanaugh; but if so, they will give progressives a leg up in the war for America’s future.”

Would a diminished Court harm the function of the country? Should the Court live on no matter what, even as a political tool full of Brett Kavanaughs? And was Ford’s testimony just a blemish on a long Kavanaugh tenure on the Court, or something more?

The Supreme Court is often viewed as an immutable part of the Constitution. It is one of the government’s three branches, tasked with interpreting the Constitution and providing a check on the behavior of the other two branches. But what this interpretation ignores is the history of the first decade or so of the Court. The Supreme Court in its earliest years was an inherently impotent body. Meeting in a basement for much of this time, the Court’s hearings were sparsely attended and its decisions of little consequence. One of its first significant decisions, Chisholm v. Georgia, was almost immediately rendered null and void by the Eleventh Amendment. According to historian Jill Lepore, the first Chief Justice of the United States, John Jay, served in the position for a little over five years and then “just quits and says, like, ‘My wife’s having a baby; I’m going home.’”

The Court was made relevant originally as a partisan weapon. It was the last branch of the government held by Federalists after the election of Thomas Jefferson in 1800. In 1803, Federalist Chief Justice John Marshall elevated the Court to the status of a coequal branch in Marbury v. Madison. This decision gave the Court the power to invalidate unconstitutional legislative and executive actions, also known as judicial review. Over the furious protests of President Thomas Jefferson, who decried the decision for turning the Constitution into a “mere thing of wax,” Marshall made the Court relevant and a powerful force in American politics.

Even more important than judicial review was what Marshall decided to do with the Court’s new power. After Marbury, Marshall refused to invalidate any federal laws throughout his time on the Supreme Court. He avoided a confrontation with Jefferson and preserved the independence of the Court through his three decades as Chief Justice. Marshall’s successor, Roger Taney, did not follow Marshall’s lead. His constant advocacy on behalf of the South led him to directly challenge President Abraham Lincoln’s authority to prosecute the Civil War in Ex parte Merryman. Taney was clearly acting on behalf of the South, whose partisans were attempting to capture the Confederate-adjacent capital of Washington, D.C., and his ruling in the Merryman case was immediately controversial. Lincoln responded by ignoring Taney’s ruling and sidelining him as a justice for the remainder of his tenure.

Dr. Ford’s testimony may serve as another pivotal moment in which partisanship combines with a singular event to revitalize the place of the Court in the nation’s politics. It took the bravery and testimony of an individual like Dr. Ford to crystallize the entire Republican approach to the Court into a handful of soundbites and memorable quotes. Like Roger Taney undermining the country through his Merryman decision, millions of Americans now see themselves as undermined by a partisan Court that would have Kavanaugh as one of its members.

Two potential scenarios emerge from this nomination. One is that the Court will follow the Taney mold and become a permanent check on the activities of liberals in the other two branches of government. A liberal president like Lincoln or Roosevelt will then challenge its legitimacy, forcing a showdown that the president will eventually win.

The other possible alternative is that of John Marshall: prudence. John Roberts would become a reliable swing vote, preventing the Trump-nominated justices plus Alito and Thomas from striking down every spending program and regulation that Democrats pass. The status quo would not please liberals and would certainly anger conservatives. But if the Supreme Court fails to reinvent itself, and follows the demands of the conservative movement to the letter, it has no chance of surviving in its current form.