Supreme Court justices don’t need an electoral mandate to do their jobs. But their latest would-be colleague may carry an anti-mandate of sorts. Brett Kavanaugh already had lower-than-average levels of support after he was nominated to replace Anthony Kennedy in July. Those numbers dropped even further after California professor Christine Blasey Ford said he sexually assaulted her in the early 1980s when they were in high school. (Kavanaugh has repeatedly denied any wrongdoing.) Now 38 percent of Americans oppose his confirmation, while only 34 percent support it.

Despite this discontent, Kavanaugh is still more likely than not to be confirmed to a lifetime seat on the Supreme Court within the next few weeks. He would reach the high court on the thinnest of margins, nominated by a president who received almost three million fewer votes than his opponent, confirmed by a Senate that gives disproportionate political power to less populous states, and sworn in amid historic levels of public opposition. Once there, he’ll likely fulfill the three-decade conservative quest to build a five-justice majority of staunch conservatives who could roll back precedents on abortion rights, affirmative action, and more.

So where does that leave Democrats? Between the scorched-earth process to put Kavanaugh on the Supreme Court, Mitch McConnell’s refusal to hold hearings for a moderate nominee like Merrick Garland in 2016, the seismic legal changes in which Kavanaugh will take part, and the shredding of all but a few remaining norms surrounding the Senate Judiciary Committee’s confirmation process, liberals are gravitating toward extraordinary measures to restore a semblance of balance to the Supreme Court—no matter the damage to the court itself.



Some of these fissures were inevitable. National Review’s Michael Brendan Dougherty presciently noted in January, months before Kennedy announced his retirement, that the court’s swing justice may have been the glue that’s holding the American political system together. Though no fan of Kennedy’s jurisprudence, Dougherty recognized that the justice’s tendency to form coalitions with a variety of justices helped preserve the court’s ideological balance of power and with it, public confidence in the court.

“Kennedy deals out victories and defeats to each side—giving slightly more defeats to social conservatives,” he wrote. “In effect, he constrains what each side can do to the other. His mercurial jurisprudence replicates and even gives the savor of legitimacy to a closely divided country. So I’ve started to worry that if the Court soon consolidates to the left or the right, partisans on the losing end of that bargain will swiftly lose faith in democracy itself.”