Content warning: This column mentions sexual assault.
With Kavanaugh confirmed, the left faces two choices: court packing as soon as the Democrats have the numbers or long-term abolition. The Republicans have put a far-right judge, who is an enemy of workers, women and minorities, on this unelected board of lawyers. Kavanaugh is emblematic of their movement as an archconservative who got along well with Never Trump neocon holdouts from the Bush era and shared the president’s taste for sexual assault and dishonesty.
By confirming an alleged rapist, anti-abortion, anti-voting, anti-worker judge, the Republicans have at last revealed the charade of the Court.
Proponents of plodding legalism see the Supreme Court as an instrument of justice and a check against tyranny; they point to Brown v. Board of Education, a decision only necessitated by Plessy and Dred Scott. They can only ever point to the moments the Court confirmed the power of organized mass movements. It was the people who won these reforms, not the enlightened wisdom of five to nine judges.
A system which sees an unelected body that can be indefinitely packed by a minority party as its highest arbiter of justice is broken. Of course, the problems with the Supreme Court — its undemocratic nature, its class composition, its tendency towards reaction — are simply reflections of the distribution of power in the United States. It isn’t judges who should decide law in relation to a 200-year-old treaty between molasses merchants and slave owners. It is you and I who should decide the law as it relates to our everyday lives, through mass participatory democracy.
There is nothing to stop the left wing of the Democratic Party from demanding the next Democratic president pack the court. The Republican grip on power and the neoliberal composition of the Democrats means this is only a temporary solution. Republicans will pack the court right back, and most Democrats would happily serve as willing checks on legitimate expressions of popular discontent or only grudgingly validate progress. But with five far-right extremists — including two accused sexual predators, Brett Kavanaugh and Clarence Thomas — on the court, it’s time for the Democrats to unambiguously call for court packing.
Norms are just the rules rich people play by to keep them from accidentally helping the poor. They don’t enhance democracy; they just make it possible for monsters to be smarmy. And Kavanaugh is the perfect monster for this moment — an Ivy League criminal and screaming reactionary drunk. His confirmation finally shows what socialists and many oppressed people have known the whole time: The Supreme Court protects the supremacy of the elite. The rotten facade of American institutions is collapsing, revealing the petulant cruelty and greed that has ruled this country since Myles Standish started ethnically cleansing Massachusetts.
Until there is enough strength or desperation on the left to abolish the Court, we can only make the Democrats pack it. But eventually there will be a force strong enough to hold these Ivy League criminals accountable for all the misery they’ve inflicted. Or else we are doomed to be ruled by them forever.