The Supreme Court Is Facing a Legitimacy Crisis

Sexual assault allegations against Supreme Court Justice Brett Kavanaugh have recently resurfacedand the Supreme Court is certainly heading toward a crisis in public confidence. The question is, will it be able to recover?


Emily Dai, Contributing Writer

Almost exactly one year ago, the American public watched Dr. Christine Blasey Ford’s gripping account of a sexual assault perpetrated by then-Supreme Court nominee Brett Kavanaugh before the Senate Judiciary Committee. Despite Ford’s testimony, Justice Kavanaugh’s utterly inappropriate demeanor and 2,400 law professors urging senators to oppose the judge, Kavanaugh was confirmed. Now, The New York Times has reported an allegation and corroborating evidence of sexual misconduct — this time from Kavanaugh’s college years. While Deborah Ramirez’s allegations have received considerably less media attention than Ford’s, they have undoubtedly hurt the Court’s image and reignited old concerns of whether or not the Supreme Court is facing a legitimacy crisis.

Legitimacy is difficult to pin down, yet remains a characteristic uniquely important to the high court. The Supreme Court’s legitimacy depends on Americans viewing it as an institution above partisanship, and the GOP has considerably bruised the Supreme Court’s reputation by forcing Kavanaugh onto the Court within years of blocking Merrick Garland’s confirmation. While some Democrats are attempting to restore some legitimacy by pushing to expand the number of seats on the Supreme Court, this last-ditch effort is unlikely to work. Kavanaugh’s infamous confirmation hearing devolved into a battle of partisan will. The FBI investigation that should have brought Ramirez’s allegations under severe media scrutiny last year was superficial front that emboldened Republicans to confirm Kavanaugh. All notions of an independent judiciary were shattered as Kavanaugh deemed Ford’s sexual assault allegations a “calculated and orchestrated political hit” and baselessly claimed it was “revenge on behalf of the Clintons.” While the Supreme Court has recovered from periods of weakening public faith in the past (public confidence in the Court dropped from 48% to 39% after Justice Clarence Thomas’s nomination process but fully recovered within six years), the previously unnoticed allegations against Kavanaugh are especially significant because they are against a sitting justice.

The effects of the Supreme Court’s damaged reputation are palpable. Newly-invigorated Republicans went as far as to write a letter to a clerk of the Court saying that the GOP had the Court’s back, and that Democrats pose an immediate threat to judicial independence. Senate Majority Leader Mitch McConnell unabashedly stated he would allow President Trump to fill a vacant seat during an election year, despite blocking former President Obama’s nominee just three years prior. The damage that this new confidence instills to be openly hyperpartisan is only matched by the sharp gender discrepancy in the Supreme Court’s approval ratings. While 60% of men approve of the court’s performance, only 43% of women say the same, according to a Gallup poll. Dr. Jennifer Freyd, a professor who specializes in studying the psychology of sexual assault survivors, noted that Kavanaugh’s confirmation signified an episode of institutional betrayal and could have lasting psychological impacts on sexual assault survivors, further contributing to the erosion of faith in the Court. For a government institution that heavily relies on its image as neutral arbiters of the law, this is especially damaging. 

There are no good solutions to this growing crisis. Several Democratic presidential candidates were quick to call for Kavanaugh’s impeachment as Ramirez’s story broke. However, unseating Kavanaugh would require several Republican senators willing to oust the justice who solidified a period of conservative dominance on the Court. Reminiscent of former President Franklin Roosevelt’s court-packing plan, others have called to expand the number of justices in order to counteract the Republican influence on the Court. Pushing forward with this initiative and imitating the GOP’s hypocrisy will do nothing to restore a less polarized judiciary. In response to several sexual harassment allegations against an array of judges, Chief Justice John Roberts called for an evaluation of the judiciary’s standards of conduct and investigation procedures. What Roberts failed to do, however, was include the Supreme Court in this new initiative. It is clear that something needs to be done, and as long as Kavanaugh’s dark cloud hangs above the Supreme Court, its reputation will only worsen.

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A version of this article appeared in the Monday, Sept. 30, 2019 print edition. Email Emily Dai at [email protected]