It was 75 years ago in a slender book called Majority Rule and Minority Rights, that the great American historian Henry Steele Commager delivered a devastating critique of judicial review – the extraordinary power, vested in the supreme court, to declare legislative acts unconstitutional. In theory, judicial review empowers the members of the court, insulated from the political fray by life tenure, to safeguard the rights of vulnerable minorities.

“Rubbish,” said Commager. Canvassing American history, Commager insisted that the only “minority” rights the court had protected were those of the wealthy. The court had consistently “put property rights above human rights”.

Commager was writing against the backdrop of the Great Depression, when a hidebound supreme court aggressively rejected early New Deal laws as unconstitutional. Not until 1937 did the court accept the basic proposition that the constitution permitted Congress to ease the economic suffering of millions.

With Earl Warren’s elevation to chief justice in 1954, Commager’s critique began to sound quaint. Here was a court prepared to do what Commager had accused the court of failing to do – energetically protect the civil liberties of vulnerable groups. In decisions such as Brown v Board of Education and Miranda v Arizona the Warren Court (1954-1969) made good on the promise of the institution as a bulwark against excessive exercises of state power.

Under the stewardship of Warren Burger (1969-1986), a Nixon appointee, the court moved to the right; still, in Roe v Wade, it recognized a woman’s constitutional right to an abortion; and, in United States v Nixon, it acted decisively and unanimously to restrain the abuse of executive privilege.

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In the decades since, the court has continued its rightward lurch, intervening to protect the very minorities that brought Commager to assail judicial review. In DC v Heller (2008), the court defended gun owners from a law meant to curb firearm violence. Then in Citizens United v FEC (2010), the court sided with corporations and wealthy donors, striking down a bipartisan law meant to check the corrosive role that money plays in federal elections.

All the same, the court left largely intact the right to an abortion and the ability of schools to shape race-based affirmative action programs; it placed restraints on executive detention practices at Guantánamo Bay; it limited the application of the death penalty; and in its landmark ruling in Obergefell v Hodges (2015), the court recognized the right of gay people to marry.

Many of these achievements were thanks to Justice Kennedy, a conservative justice who nonetheless long served as a swing vote, siding at times with his liberal colleagues against the court’s conservative stalwarts. With Kavanaugh’s confirmation – by the thinnest of majorities after the most rancorous confirmation battle in American history – that swing vote is gone. Brett Kavanaugh will anchor the most conservative supreme court since the early years of Franklin Delano Roosevelt’s presidency.

Yet it is a court beleaguered. The conservative triumph has all the legitimacy of a coup d’etat. Success was achieved by cynically stealing a seat that rightfully belonged to Merrick Garland and by installing a man accused of sexual assault whom 2,500 law professors and a former supreme court justice concluded is temperamentally unfit for the job.

We can expect this exceptionally conservative but tainted court to incrementally burden the right to an abortion, though probably not to overturn Roe in one fell swoop. We can expect it to side with religious groups against gay people, without directly overturning Obergefell. And we can confidently predict the end of efforts to use race as a tool to diversify and enrich American institutions of higher education.

However regrettable this may be, the real danger posed by the five-man bloc lies elsewhere. With a crabbed, pre-New Deal understanding of administrative power, the court appears unwilling to grant agencies the discretionary authority to address our greatest problems, such as climate change. No less troubling, is the prospect of a court so enamored with executive power that it will refuse to hold Donald Trump constitutionally accountable for any alleged crimes. Finally, and no less calamitously, is the likelihood that this court will strike down any and all non-partisan efforts to curb the most extreme exercises of gerrymandering – exercises that just happen to favor the very party that installed the five-man conservative bloc on the court.

What positive purpose does judicial review serve if it merely defends the rights of those entrenched in power? Let us recall Commager’s answer: none.