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When Courts Change Their Minds

photograph of law books in a library

In late June the Supreme Court of the United States released a bevy of opinions. Most prominent perhaps is the 5-4 decision in Dobbs v. Jackson Women’s Health in which the court overturned the famous 1973 Roe v. Wade decision. The court also, in Kennedy v. Bremerton, has done away with the long used “Lemon test” concerning the separation of church and state.

Beyond questions of whether the decisions are ethically correct, these rulings are notable because they go against established precedent. In legal systems like the United States, courts generally adhere to the doctrine of stare decisis or “to stand by things decided.” The Supreme Court has previously ruled – in both Roe v. Wade and Planned Parenthood v. Casey – that there exists an implicit constitutional right to abortion. Changing its mind is then unusual, although hardly unique to the current court. The 1954 Brown v. Board of Education is famously seen to have overturned the “separate but equal” doctrine the court had previously held in Plessy v. Ferguson. (Although, technically, the Brown ruling is more narrow, only contending that separate but equal does not apply in public schools.) Evan Butts has previously discussed some of the practicalities of overturning precedent for The Prindle Post.

Recent additions to the Supreme Court, such as Justices Brett Kavanaugh and Neil Gorsuch, are being criticized for implying (misleadingly) they would stick with precedent on rulings like Roe v. Wade.

But why should the Court be bound by past opinion at all? Imagine a scientist claiming that we should stick with Newtonian physics and not jump ship to general relativity because Newtonian physics is an established precedent – even though they agree Newtonianism is incorrect.

This would be preposterous. And yet stare decisis is often understood to imply such a burden, that, as Justice Brandeis wrote in 1932 “in most matters it is more important that the applicable rule of law be settled than it be settled right.”

Following precedent in cases where the rightness of the initial ruling is not in question is straightforward – this is nothing more than a demand for courts to interpret the law correctly. Precedent as such is superfluous here, as consistency is being ensured purely by the court deciding correctly in each case. The doctrine of stare decisis only achieves importance when it comes to ambiguous or even wrongly decided cases, and whether they should nonetheless maintain some hold over future judicial decisions.

As Justice Brandeis suggested, defenders of stare decisis justify it by pointing to its role in settling matters of law – that is, making law fair, consistent, and predictable, as opposed to mercurial.

The claim is that absent this general principle of stability, the law could change drastically with the simple turnover of judges. More practically, precedent also provides courts the legal tools to decide cases efficiently.

The value of having settled law is especially clear in cases like Obergefell v. Hodges (2015) which enshrined a constitutional right to the recognition of same-sex marriages. Agree or disagree ethically, it is clear same-sex couples can and have built their lives differently knowing that they have a right to marriage recognition. Likewise, agree or disagree ethically with abortion, confidence they have control of whether to go through with a pregnancy affects how women live their lives. These are referred to as reliance interests.

Notably, these defenses of precedent contain the seeds of their own limitation as ultimately the doctrine of stare decisis is justified on the basis of being a social good. Cases of pernicious and dubiously-decided law are weighed against the value of the law being settled. Justice Brandeis made a further point, distinguishing the weight of precedent in statutory law (made by the legislature) which can easily be overturned by later legislation, from precedent in matters of constitutional interpretation. According to Brandeis, precedent matters less when there are fewer forms of redress.

Overall, few if any defend an imperative to follow precedent for all cases – at least when it comes to rulings being made by a court of equal or lesser authority. Precedents can and do get overturned. That lower courts should follow upper courts can provide an alternative defense of following precedent even in wrongly decided cases (sometimes called vertical as opposed to horizontal precedent).

In the 2018 5-4 decision Janus v. AFSCME, the majority opinion authored by Justice Samuel Alito indicated that the current Supreme Court is especially open to revisiting previously decided matters when it believes they were wrongly decided. Justice Clarence Thomas has claimed, most recently in his concurring opinion in Dobbs v. Jackson Women’s Health Organization, that the Court should correct “demonstrably erroneous” rulings.

Expanding Thomas’s point, one could argue that the Supreme Court should have no special obligation to consider the social value of precedent and settled law at all, and simply always make the legally correct decision.

The chief challenge with this line of argument is on what basis should a case be considered “demonstrably erroneous”? Certainly, the current Supreme Court does not have consensus that the legal reasoning of Roe v. Wade and Planned Parenthood v. Casey was wrong. (Brown v. Board of Education incidentally was a unanimous decision.) Absent strong evidence, e.g., a unified court, that a decision was made wrongly on legal grounds, the “demonstrably erroneous” standard of overturning precedent can collapse into “I think this decision was decided wrongly, and therefore I am justified in overruling it.” This reintroduces the dependence on the idiosyncrasies of specific justices that a principle like stare decisis is supposed to help limit.

Law is complex and so is legal interpretation – we should expect obviously incorrect decisions to be the exception rather than the rule. In light of this, one approach to stare decisis would be to acknowledge precedent should not be binding, but that the force of its motivating reasons such as consistency and stability of law apply especially strongly in cases where legal correctness or the proper interpretive framework is under dispute. Nonetheless, the current Supreme Court has indicated a more revisionary stance. It will become clear over the next few years how this plays out with the broader legal understanding of stare decisis in the United States.

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Why Misleading Is Wrong (but Isn’t Perjury)

photograph of Kavanaugh being sworn in with hand on Bible

In the wake of the Supreme Court’s recent ruling in Dobbs v. Jackson (where the Court overturned national legal protections to abortion rights codified by 1973’s Roe v. Wade), several justices have faced heavy criticism for comments they made during their confirmation hearings about Roe and stare decisis (the legal practice of ruling on cases according to established precedent).

According to critics, multiple justices lied during their job interviews about their commitments and principles, not only misleading the politicians who supported them, but theoretically making them liable to impeachment.

As talk show host Stephen Colbert put it, “if these folks believe that Roe v. Wade was so egregiously decided, why didn’t they tell the senators that during their confirmation hearings?”

There are at least two ways to answer Colbert’s question and, importantly, neither of them entail that any of the justices lied under oath — but that’s not to say that Gorsuch, Kavanaugh, or others didn’t speak immorally nevertheless. Consider how someone can manipulate or mislead another by carefully speaking in a way that is not technically untruthful, using insinuations, suggestions, and even silence to push their audience into believing something: in so doing, the speaker is unethically violating conventional expectations about trust and good-faith communication, even if they never speak a falsehood.

Indeed, “telling a lie” and “misleading an audience” are substantively different and although both speech-acts are unethical, only the former is clearly illegal while giving sworn testimony. But whether justices were carefully following the “Ginsburg rule” during their hearings (that requires a judicial candidate to give “no hints, no previews, no forecasts” of their potential rulings) or whether they were shrewdly avoiding a clear answer that might sour their chances of confirmation, it’s not clear that any of them lied to Congress.

In order to actually tell a lie, someone must:

1. Know the truth,
2. Assert the opposite of the truth,
3. Act with the intention of getting their audience to believe the opposite of the truth.

Suppose that Bill tells Calvin that their automatic garage door opens because a guy lives in the attic to operate its movement. This claim is not true, but if Bill genuinely believes it (violating Condition #1), then he hasn’t lied — he’s simply incorrect. Similarly, if Bill violates Condition #2 and phrases the speech act as a genuine question (“Do you think that someone lives in the attic?”), then he hasn’t lied either. And, crucially, if Bill is just making a joke or is otherwise speaking ironically (and doesn’t actually mean for Calvin to form a belief in an attic-dwelling door-opener), then he is violating Condition #3 and has also not explicitly told a lie.

But suppose that Bill simply implies that someone lives in the attic and misleads Calvin to form such a false belief — maybe Calvin asks Bill if such a person exists and Bill responds with “It is metaphysically possible for such a person to live in our attic.” This response isn’t technically false (because, although it is wildly unlikely, it is possible), so Bill hasn’t technically lied. Granted, Calvin would have to be exceedingly gullible to be misled by Bill in this way, but Bill could be guilty of trying to mislead Calvin nonetheless.

As MIT philosophy professor Sam Berstler explains in a recent paper, both liars and misleaders violate social conventions about the trustworthiness of speakers in conversations (where we typically assume that our interlocutor is acting in good faith), but only the former also violates expectations about truthfulness.

Put differently, liars fulfill conditions (1), (2), and (3); misleaders fulfill only conditions (1) and (3).

And, crucially for the present conversation, the legal definition of perjury requires that someone fulfill (2).

So, what did the SCOTUS justices actually say about Roe before being confirmed to the bench? Speaking in 2017, Neil Gorsuch repeatedly referred to the precedent set by Roe, calling precedent the “anchor of law” that functions as “the starting place for a judge”; when pressed about whether or not he accepted that a fetus is not protected by the 14th Amendment, Gorsuch replied “that is the law of the land. I accept the law of the land.” The following year, Brett Kavanaugh infamously told Senator Susan Collins in a private conversation that he considered Roe “settled law,” but in his sworn testimony he again referred to it as “a precedent of the Supreme Court, entitled the respect under principles of stare decisis” and, like Gorsuch, repeated that “the Supreme Court has recognized the right to abortion since the 1973 Roe v. Wade case. It has reaffirmed it many times.”

This is clearly true: prior to June 2022, SCOTUS had indeed repeatedly looked to Roe’s precedent as the law of the land — but SCOTUS is also empowered to overrule precedent: as Gorsuch said, it is only the starting place for a judge.

Which means that Gorsuch and Kavanaugh’s sworn testimony (as well as that of the other four justices who overturned Roe) is fully compatible with the present Court overturning that precedent: it was the law of the land during their confirmation hearings, but now it is not.

Put differently: because no Supreme Court justice explicitly asserted that “I will not ever vote to overturn Roe,” none of their speech acts fulfill Condition #2 and so qualify as neither lies nor perjury.

However, to reiterate, this does not mean that the justices are above reproach here (despite what some pundits have suggested): misleading your audience — as Gorsuch and Kavanaugh (and others) apparently did by giving well-crafted, technically-not-perjuring responses that still prompted senators to form false beliefs about their later intentions — is unethical in a host of ways. In particular, being misleading violates expectations about your trustworthiness and integrity: this is something close to lying, even though it is not illegal. A key difference, however, is that your audience also bears some responsibility for their naivety, ignorance, or lack of epistemic diligence that allowed them to be duped (something particularly damaging to the credibility of the justices’ audiences, given that U.S. senators should be familiar with the stereotypical double-speak of lawyers and politicians — to say nothing of the other evidence available prior to the confirmation votes).

But there’s little formal recourse for shamefulness.

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The Death of Roe v. Wade: What Lies Ahead?

image of US map with flag and constitution superimposed

The pro-life movement appears to be on the cusp of winning its crowning triumph — the overturning of the constitutional abortion regime established by two Supreme Court cases, Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. In oral argument last December for the case of Dobbs v. Jackson Women’s Health Organization, involving a constitutional challenge against a Mississippi law banning abortion after fifteen weeks, all of the Court’s conservative wing — with the possible exception of Chief Justice Roberts — appeared ready and willing to abandon fifty years of precedent and declare, in Justice Kavanaugh’s words, that the “Constitution is silent and, therefore, neutral on the question of abortion.” Thus, it seems appropriate to consider now how the legal landscape might shift in response to this momentous development.

In what seemed like an attempt to mollify coastal liberals, during oral argument for Dobbs Justice Kavanaugh and Mississippi’s Solicitor General, Scott Stewart, speculated as to the relatively limited fallout we might expect. Seeking to paint a rosy picture of what the future might hold, Kavanaugh asked Stewart whether, if Mississippi prevailed, a “majority of states still could or… presumably would continue to freely allow abortion.” Stewart answered that this outcome was “consistent with our view.” Earlier in the argument, Stewart suggested that a ruling in Mississippi’s favor would serve the “many people [who] vocally just really want[] to…decide [the abortion question] locally….”

But Kavanaugh and Stewart’s implication that pro-choice states could simply continue to permit abortion after the Court upholds Mississippi’s law is somewhat disingenuous. Many liberals and conservatives seem to think that if Roe is overturned, the question of abortion’s legality would automatically vest in the states. This is far from clear. Congress could, if it wished, pass legislation under the Commerce Clause that either prohibited or permitted abortion nationwide, thereby preempting state law. (The Commerce Clause is the most likely constitutional “hook” here because abortions are services sold in interstate commerce). This possibility means that the oft-repeated claim that returning abortion to the states by overturning Roe will lessen the national-level rancor surrounding abortion rests on a false premise.

When Roe was decided in 1973, thirty-one states forbade abortion in all circumstances except to save the life of the mother. Some of these states never repealed their pre-Roe abortion statutes. When the Supreme Court declares a state law unconstitutional, it is not automatically repealed; without legislative action, it stays on the statute books, unenforceable but still a part of the state’s legal code. If Roe is overturned, these “dormant” statutes could easily spring back to life. Thus, a pro-life ruling might not endanger abortion access only in states that, like Mississippi or Texas, passed anti-abortion statutes after 1973 in anticipation of the eventual overturning of Roe. Moreover, although the issue is not definitively settled, recent Court precedent suggests that its decisions about federal law have “full retroactive effect,” at least in civil cases. This raises the possibility that if a plaintiff sues an abortion doctor for conduct that took place before Roe was overturned pursuant to state law, the defendant might not be able to defend herself by claiming that her behavior was constitutionally protected at the time.

One particularly interesting exchange in the Dobbs oral argument concerned the possible effect of overturning Roe on other seminal cases involving reproductive and sexual rights, such as Griswold v. Connecticut — which declared that the right of married couples to buy and use contraceptives is protected by the constitution — or Lawrence v. Texas and Obergefell v. Hodges, which struck down bans on homosexual intimacy and same-sex marriage, respectively. Justice Barrett asked Solicitor General Stewart whether a decision in Mississippi’s favor would have adverse effects on these other decisions. Stewart replied that two features distinguish them from Roe: “Negative stare decisis considerations,” and that none of those other decisions “involve the purposeful termination of human life.” In saying this, Stewart was suggesting two lines of reasoning that the Court’s conservative majority could use to overrule Roe: that Roe doesn’t have the same precedential weight as other “watershed” decisions like Brown v. Board of Education because key elements of Roe were abandoned in Casey, and that states have a compelling interest in fetal life.

However, in a later colloquy between Stewart and Justice Sotomayor in which the latter noted that all of these decisions rested on “substantive due process,” Stewart denied that Griswold, Lawrence, and Obergefell were vulnerable on the grounds that Mississippi is “quite comfortable with Washington v. Glucksberg and how it analyzes substantive due process.” By “substantive due process,” Sotomayor and Stewart were referring to a Supreme Court doctrine according to which the Due Process Clause of the Fourteenth Amendment protects certain substantive rights, such as privacy or autonomy, and not merely procedural rights to judicial process when the government deprives persons of life, liberty, or property. In Roe, the Court held that the Due Process Clause guarantees a right of privacy that includes the right to abortion. The rationales for Griswold, Lawrence, and Obergefell all relied to one extent or another on the substantive due process doctrine. Nevertheless, the very idea of substantive due process is something of a bugbear among conservative lawyers and legal scholars, including some Supreme Court Justices. Thus, Sotomayor was pointing out to Stewart that should the Court overturn Roe by rejecting substantive due process, the other decisions on sexual and reproductive rights could easily fall with it.

Stewart’s reply was to point to the Glucksberg case, decided twenty-five years after Roe, in which the Court held that only rights that are “deeply rooted in the nation’s history” are protected by the Due Process Clause. Stewart was in essence saying that Mississippi was not arguing for abandoning substantive due process, so long as the Court adheres to the Glucksberg standard. By that standard, according to Stewart, abortion rights are not among the rights protected by substantive due process, since abortion rights do not have deep roots in America’s history. The obvious problem with this reply is that rights to birth control, homosexual sex, or same-sex marriage are also not deeply rooted in the nation’s history — a point that Sotomayor began to articulate before being interrupted and sidetracked by Stewart.

This discussion has ventured into the constitutional weeds in order to illustrate the point that the ramifications of the Court’s ruling in Dobbs will crucially depend upon the precise nature of the reasoning it uses to support it. If the Court decides to overrule Roe on the narrow ground that the state has a compelling interest in fetal life, then other substantive due process rights may survive. But if the Court uses Dobbs as an opportunity to affirm and apply the Glucksberg standard, or even to call the doctrine of substantive due process into question, then these other decisions may be left vulnerable to challenge. In general, the Court likes to decide issues on the narrowest grounds possible, but there are exceptions to this rule. Moreover, as I mentioned, there are a number of Justices who are openly hostile to substantive due process as a whole. In that context, a Glucksberg-based decision that preserves substantive due process but potentially affects a host of other important cases might appear to some Justices like a reasonable middle ground. We can only speculate.

The ramifications of Roe’s death are unpredictable. In this column, I have emphasized some possible consequences that add up to a darker picture of life after Roe than even many left-leaning commentators predict. However, there are other possible effects that may be less desirable to the pro-life side. Although studies suggest that overturning Roe will, in the short term, appreciably depress abortion rates — mainly by increasing travel distances between pregnant women and abortion providers — the longer-term effects are less clear. In the years leading up to Roe, many states were liberalizing their abortion laws. As millions of women find themselves wholly cut off from access to safe abortion services, that trend may continue if Congress does not act. In the fullness of time, it is quite possible that the pro-life side will find the death of Roe a Pyrrhic victory.

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Ponderous Chains; or, How the Supreme Court Escapes Precedent

photograph of statue on the steps to the US Supreme Court

Like Jacob Marley, the Supreme Court of the United States wears the chains it formed in life; unlike Jacob Marley, the Supreme Court is not always resigned to be strictly bound by these chains. This is a simile. It is also in the form of a fact-to-fact comparison law students are taught to write in their first year. Such legal similes are a devious device by which the Court slips its ponderous chains — but only in its subtler moments. A court will avoid following a rule while leaving it in place by arguing that it doesn’t apply in a particular case — by “distinguishing” a past binding case from one under consideration. At other times the Court casts-off one of its coils altogether like Dorothy Parker’s apocryphal book. It is this less subtle maneuver that commentators worry about when the make-up of the court radically changes, as it has over the last four years. Now with President Donald Trump poised to name a third justice to the Court, after Neil Gorsuch (replacing Antonin Scalia) and Brett Kavaunagh (replacing Anthony Kennedy), the Court is changing more at one time than it has since the presidency of Franklin D. Roosevelt.

The Supreme Court of the United States (“SCOTUS”) has nine justices. That number is not fixed anywhere as a matter of law, but is how many seats there have been since 1869. That makes 5 to 4 four the ratio for majority opinion. Why does that matter? All courts in the US operate on the basis of a principle called stare decisis, which is Latin for “stand by what is decided.” This principle creates a system of judicial precedents that oblige “lower” courts to rule in a manner consistent with “higher” courts, and creates a strong presumption that a given court will decide in a manner with its own past decisions. For example, decisions of the Supreme Court of Pennsylvania bind the intermediate appeal courts of that state, as well as all of the state trial courts. The decisions of the 3rd Circuit Court of Appeals bind the Federal District Courts of Pennsylvania, New Jersey, Delaware, and the Virgin Islands. And of course the decisions of the SCOTUS bind all other courts: it is the “highest court in the land,” and therefore all other courts are lower with respect to it.

A majority opinion is required for a decision to be binding. Or, more precisely, a single rationale (implicitly) approved by at least five justices is required to bind lower courts. This rule, the “Marks Rule,” was promulgated in Marks v. United States, where the court was primarily concerned with deciding due process issues about the retroactive effect of binding decisions made while other cases are in the process of adjudication. If there is no common rule or rationale embodied by the collective opinions of the justices, then their opinions are merely persuasive rather than binding. When the SCOTUS does issue a majority opinion, in addition to binding lower courts, it also creates a precedent that it will generally hold itself to. Reading a SCOTUS opinion, you will see the justices often refer to past Court decisions as reasons for their decision — sometimes with open distaste. For example, in Grable & Sons Metal Products v. Darue Engineering & Manufacturing, Justice Clarence Thomas invited an opportunity to overrule Court precedent concerning federal court jurisdiction in his opinion concurring with an unanimous court. That is, in the same breath he indicated both “this is the rule” and “I would like to obliterate this rule.” Recently, Thomas also indicated that he would entertain cases aimed at overturning the qualified immunity rule.

Why would a Justice or the Court invite the opportunity to hear cases in order to overturn precedent rather than simply doing it? No court can just issue any decision on any matter it wants to apropos of nothing. There are complicated matters concerning which court (“venue“) can hear which claims (“subject matter jurisdiction“) over which people (“personal jurisdiction“), all of which haunt the sleep of law students. Further, courts usually cannot decide any matters that are not explicitly raised by parties to a legal proceeding: they cannot issue rulings on their own initiative, or “sua sponte.” Finally, the supreme courts of the various states and the United States itself are not generally obliged to hear any particular case. Instead these courts exercise their discretion, guided by their own procedural rules, when determining what cases to hear.

Now the anxiety of liberal Court-watchers becomes clear. With Amy Coney Barrett’s confirmation to the seat made empty by Justice Ruth Bader Ginsberg’s death, the balance of the Court would shift to a clear conservative majority. The conservative bench would comprise Justices Barrett, Kavanaugh, Gorsuch, Alito, Thomas, and Chief Justice Roberts, while the liberal bench would have only Justices Sotamayor, Kagan, and Breyer. In light of this composition, people eager to overturn decisions in disfavor with conservatives (for example, Roe v. Wade) would attempt to obtain review for as many cases that could present an opportunity for the Court to overturn past precedent. Conservative members of the Court might even encourage that in their opinions on related matters. There would then be a new precedent, binding on all lower courts, until a time when a later Court with a different composition might decide to change its mind again. However, as Justices serve until they die, retire, or are removed pursuant to impeachment, it takes a long time for the composition of the court to evolve “naturally.”

In light of the Republicans blocking Obama nominee Merrick Garland during an presidential election year, and their subsequent rush to appoint Amy Barrett in the last few weeks prior to a presidential election, many urge an “artificial” alteration of the Court’s composition. The alternative, increasing the number of seats on the court (i.e., “court packing“), was openly discussed by Democratic presidential candidates Pete Buttgieg, Amy Klobuchar, Cory Booker, and current Democratic Vice-Presidential candidate Kamala Harris. However, that option requires Congressional cooperation and popular support and is likely to create pushback. In all likelihood, Democrats will have to wait a long time to appoint a new Justice to the court, even if Joe Biden wins the 2020 election for President of the United States.

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Does a Post-COVID World Change the Plan for Court-Packing?

"Equal Justice Under Law" Supreme Court facade

In recent weeks the United States Supreme Court has made several landmark decisions that have surprised many legal observers. Recent rulings on immigration, LGBTQ rights, and abortion highlighted the importance of Chief Justice John Roberts as a potential swing vote, tempering the conservatism of the Court. Recent headlines highlight this development: “John Roberts Shatters Expectations for the Supreme Court,” and “Chief Justice Roberts Steers High Court to a Surprising Term.” I imagine that the surprise many seem to have is owing to the expectation that with the appointments to the Court over the last four years, the Court would take a far more conservative approach. If Joe Biden wins in November (and if the Democrats gain control of the Senate) the matter of whether to “pack” the Court will become relevant again, but in light of recent events, would this be appropriate?

The debate over court-packing is not necessarily a new one. During the Depression, several New Deal provisions, like the National Recovery Act, were struck down. With five aging conservative justices to deal with, FDR proposed to expand the Court to appoint a new justice for every sitting justice older than 70 and who had served for 10 years. Had that proposal been carried out, six new justices would have been added to the Court. The move attracted controversy, but in the end one of the justices who opposed the New Deal retired a few months later and Roosevelt was able to appoint his own justice and shift the balance of the court.

It is important to note that nothing in the Constitution mandates that there be 9 justices on the court, and recently there have been calls to “pack” the Court with more liberal justices in order to shift the balance yet again. These calls follow the wins of Presidents George W. Bush and Donald Trump, both of whom became president despite losing the popular vote and who managed to appoint four justices between them (including Roberts himself as Chief Justice). Had the presidency been given to Al Gore (possibly assuming re-election in 2004) and Hillary Clinton, those three to four justices would have been able to tilt the Court heavily to the left. It is worth noting that Republicans have only won the popular vote of a presidential election once in the last 28 years. There is also the matter of Merrick Garland. Garland was nominated by Obama following the vacancy created by the death of Antonin Scalia. Had he been confirmed, the Court would also have shifted leftward. But Republicans refused to hold a hearing or vote, and after Trump became president in 2016, the vacancy was filled by Neil Gorsuch instead.

If Biden and the Democrats win in November and retake the Senate and the White House, the (now) lack of a filibuster on such votes could allow for more justices to be appointed. But with Roberts’ tendency to be a swing vote, tempering the more conservative voices on the Court, why would packing be needed? After only a few recent decisions, assertions like “John Roberts is Just Who the Supreme Court Needed”, that Roberts is “steering the court on a middle course,” that Roberts is “leading from the center” or that the Roberts Court defies partisanship have been made, and if it were true then the case for packing the Court would be undermined. Those who make such claims suggest that Roberts is trying to protect the integrity of the court from being seen as too partisan.

However, there is good reason to be cautious about these claims. As lawyer Tom Goldstein told NBC News, “The chief justice is more of an incrementalist than a swing justice…He is moving the law to the right, but slowly. And the liberal justices are willing to go along with him, to minimize the damage.” The LA Times reports that while trying to demonstrate that the Court is not in Trump’s pocket, “they quite often hand down ideological cases that go his way.” Indeed, in other cases, such as on the matter of voting rights, Roberts supported the conservative position. In other words, the evidence for the notion that the Court is now balanced or nonpartisan may be more anecdotal than conclusive. Given that these recent swing votes have taken place during an election year, it may be that Roberts is trying to prevent public resentment which might lead to court-packing. While political participation is generally low, issues concerning the makeup of the Supreme Court can be a significant motivator for voters.

Despite recent rulings, there are more arguments to be made for and against packing that are poignant during the current crises taking place in America. Courts are now ruling on the legality of COVID-19 orders, and this may be the most litigious election ever, setting countless precedents regarding voting by mail and absentee ballots. The Supreme Court itself ruled on cases in Texas and Alabama which have made it more difficult for people to vote by absentee, meaning that voters will have to risk infection if they wish to cast their ballots. The rulings that could be made following COVID-19 could have massive social, ethical, economical, and legal consequences. Climate change may require massive shifts in state intervention that conservative jurists regard as unconstitutional. In fact, hostility to voting rights are one of the reasons made for court packing. But court-packing may also be a useful threat to either gain voluntary compliance from the court on key issues or spur action to depoliticize the judiciary.

On the other hand, the arguments against packing tend to focus on the worst-case scenario where all the Court’s credibility is lost. With this in mind, certain proposals, like Pete Buttigieg’s, provide for the appointment of both conservative and liberal justices. But, as yet, there is no hard evidence to suggest that court-packing would work for or against public respect for the Court.

Former Obama White House Counsel under Barack Obama Bob Bauer has argued that attempts to pack the Court are ill-considered. He notes, “It seems that Trump’s opposition would do better to distinguish its reform politics from anything resembling the approach of this president, which seeks to undermine institutions and associated norms to engineer his preferred outcomes.” Institutional reform can be done in a way that is “bona fide” or in a way that will “merely result in additional or perhaps irreparable institutional damage and political fallout.” Bauer is clear to distinguish between institutions and outcomes, noting that court-packing secures chances of winning cases but does not strengthen the institution or our trust in it. In essence, it may delegitimize the Court, however, there is no reason to think that evaluation of an institution and evaluation of its outcomes are distinct endeavors. Certainly, some outcomes have undermined the legitimacy of the institution.

But this distinction between the Court as independent body or the Court as political tool requires further explanation and justification. Otherwise, the definition being adopted is that “bona fide institutional reform” merely excludes consideration of desired political ends for arbitrary reasons. On the other hand, while potentially useful even as a potential threat, if there is going to be a plan for packing, it also cannot be arbitrary. That plan must come from a particular vision of the purpose and function of the Court.

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Opinion: Kavanaugh Was the Wrong Choice

photograph of Mississippi senator Cindy Hyde-Smith and Brett Kavanaugh smiling while sitting on a couch

It’s a headline we’ve all probably seen in some form during the past month: allegations of sexual assault against nominated justice Brett Kavanaugh disrupted his confirmation to the Supreme Court of the United States. Updates on the interruptions surrounding his confirmation have dominated news cycles since alleged victim of Kavanaugh’s forceful advances, Christine Blasey Ford, testified against him in front of the Senate Judiciary Committee last month. To quickly recap, here is a timeline of significant events that have transpired with Kavanaugh’s confirmation:

           

July 9: President Donald Trump announces his pick as Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court bench.

September 16: Christine Blasey Ford’s accusations of Kavanaugh sexually assaulting her while they were both in high school go public in a Washington Post report.

September 17: Kavanaugh issues a statement denying Ford’s accusations.

September 23: A second woman, Deborah Ramirez, comes forward with sexual misconduct allegations from when the two were in college together. Kavanaugh subsequently denies these allegations.

September 26: A third woman, Julie Swetnick, accuses Kavanaugh of targeting girls for sexual assault. Kavanaugh also denies these allegations.

September 27: Both Kavanaugh and Christine Blasey Ford testify before the Senate Judiciary Committee.

September 28: Senate Judiciary Committee votes to send Kavanaugh’s confirmation to the Senate floor.

October 1: White House directs FBI to interview anyone deemed relevant in their investigation of Kavanaugh.

October 6: The Senate confirms Kavanaugh to the Supreme Court.

These events have brought the push against the #MeToo movement to a head, as Kavanaugh’s defenders elicited many similar arguments that were used in defense of the men who were accused of rape/sexual misconduct soon after the movement’s birth including Louis CK, Al Franken, and Matt Lauer. Perhaps the most commonly-used of these arguments is the presumption of innocence. Actor, comedian, and producer Jeremy Piven stated after being accused of sexual assault that “lives are being put in jeopardy without a hearing, due process or evidence.” In this, Piven refers to the subverting of formal legal processes in these accusations by publicly labeling men as sex offenders when there is no concrete proof or general consensus supporting the accusations. Thus, to Piven, the notion of “innocent until proven guilty” seems to have been wrongly undermined in these situations. More relevant to Kavanaugh’s case, Hans A. von Spakovsky of Fox News writes, “if you believe in the presumption of innocence, based on what we know now it would be unfair to assume that Kavanaugh is guilty of sexual assault and deny him a seat on our nation’s highest court based on uncorroborated accusations.”

Furthermore, Kavanaugh’s backers argued that the instances of sexual assault his accusers detail occurred in 1982, when Kavanaugh was only 17 years old and the culture surrounding sexual assault was much different than it is today. Rod Dreher, an editor at the American Conservative, tweeted, “I do not understand why the loutish, drunken behavior of a 17 year old high school boy has anything to tell us about the character of a 53 year old judge…This is a terrible standard to establish in public life.” In 1982, long before the #MeToo movement and American society’s mainstream prioritizing of sexual consent, forced sex between young people was merely seen as “fooling around” or “boys being boys.” The extent and severity of sexual assaults on young women had not yet been exposed to the public, so most people were not engaged in discourse about the issue. In fact, the first nationally-observed Sexual Assault Awareness Month was not until April of 2001. Therefore, as Kavanaugh supporters argued, how could Kavanaugh have understood the need for consent before discussions about consent were even being had in the mainstream?

Whether for the sake of partisan politics, women’s rights, or molding the future of conversations about sexual assault, Democrats in Congress fought vehemently to block Kavanaugh’s confirmation to the Supreme Court. Dianne Feinstein, a Democratic Senator from California and ranking member of the Senate Judiciary Committee, wrote in an article for The Los Angeles Times, “Supreme Court justices should not be an extension of the Republican Party…I strongly oppose Judge Kavanaugh’s nomination to the Supreme Court.” Feinstein’s argument raises a fair partisan concern, but there are other, more ethically-grounded reasons why Kavanaugh should not have been confirmed to the Supreme Court and why the previously-mentioned defenses of him fall short.

What Kavanaugh’s supporters seem not to realize is that Kavanaugh was not being tried as a criminal, although he and Ford’s testimonial process bore great resemblance to a criminal trial. Rather, Kavanaugh was undergoing intense scrutiny to deem whether he is worthy of holding one of the most prestigious and permanent offices in the United States’ government. Therefore, the presumption of innocence does not apply to this situation. There will be no verdict of “guilty” or “innocent,” but rather one of “fit” or “not fit” to serve on the Supreme Court. Being denied the confirmation would not have “ruin[ed] Judge Kavanaugh’s life,” as Republican Senator Lindsey Graham of South Carolina believes it would have, rather it would have prevented a potential sexual deviant from holding one of the most ethics-centered positions in the U.S. Even if one holds a sound belief that Kavanaugh is innocent of committing sexual assault, why should our country take the risk? Especially in a political climate where sexual assault cases are at the forefront, we cannot afford to do so. Politics aside, President Trump and the Republican Senate could have nominated and confirmed a judge with similar politics and competency as Kavanaugh, but without his questionable past.

Should Kavanaugh’s past be allowed to affect his future? The short answer is that it shouldn’t matter. The extended answer requires us to step back and look at Kavanaugh’s confirmation from a broader view. Bearing the entire country’s already horrific rape culture in mind, Kavanaugh and his individual life should have no bearing on the nation’s future. According to the National Center for Victims of Crime, approximately one-third of perpetrators of juvenile sexual abuse are themselves juveniles, with an overwhelming majority being male. By confirming Kavanaugh to the Supreme Court, the President and Congress have sent a resounding message to the rest of the nation that high school boys can sexually assault their female peers and still grow up to hold one of the highest offices in the nation. The danger of sending this message greatly outweighs threats to Kavanaugh’s individual future.

Unfortunately, the Senate disregarded these points and sided with partisanship over morality and logic to confirm Kavanaugh to the Supreme Court anyways. While the future of our nation looks bleak with the lifetime appointment of Kavanaugh, what can this debacle teach us about the intersection of ethics and politics? Perhaps the most important lesson to take is that public officials, especially politicians, should be judged based on the ethicality of all of their actions, and how they react to those actions. Kavanaugh, vying for the most ethics-centered position in the nation, was accused of an unethical action, and reacted with anger and brute denial rather than understanding and acknowledgement of a social climate in the United States that is dangerous for women. Whether he is guilty or not, his refusal to recognize the backlash that survivors of sexual assault commonly face implies that he does not see consent to be tied directly to ethics. In today’s politics where sexual assault is at the forefront of modern law, the U.S. needs a new justice who will view these cases with objectivity and poise, will set a good example for the rest of the nation, and will have a sound moral compass. Brett Kavanaugh is not that justice.

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The Ethics of Legacy Admissions

Photograph of a banner that says "office of admissions"

In a statement to the Senate Judiciary Committee, Judge Brett Kavanaugh responded to questions about his college-aged behavior by saying “I got into Yale Law School. That’s the number one law school in the country. I had no connections there. I got there by busting my tail in college.” Although Kavanaugh’s claim to independence was quickly confirmed to be false (his grandfather also attended Yale), his concern to separate himself from the notion of being a “legacy admission” is unsurprising: the very concept grates against the oft-espoused cultural virtue of pulling yourself up by your own bootstraps.

In short, for college admission offices who give preference to such applicants, “legacy” students have at least one close relative (such as a parent, sibling, or grandparent) who is an alumnus of the college in question. Being such an applicant grants no guarantee of admission, but it is a standard question on the applications to many elite institutions, particularly in the Ivy League. Universities interested in such information defend the practice on the grounds that it helps improve a college’s yield, or percentage of admitted students who actually end up enrolling, if more admitted students already have emotional connections to the institution. Critics of the practice charge that it inherently prefers traditionally privileged students at the expense of potentially equally qualified applicants from poorer families.

One element cannot be debated: legacy admission rates are indeed higher than that of others students, often to the degree of two to five times more than first-generation applicants; nearly a third of Harvard’s incoming class of 2021, for example, counted themselves as legacy students. Many schools do not report statistics on the effect of legacy applications to the admissions process, but recent student movements at several historic universities are pushing to change such policies. At the very least, they argue, if the natural assumption of collegiate meritocracy is going to be undermined by nepotistic interests, then such effects should be made public.

Although it may be true that legacy applicants are more likely to attend a school to which they apply, it is clearly not the case that legacy students are the only applicants with emotional investments in the schools of their choice. If yield rates are a driving concern in perpetuating this practice, that could easily be addressed during applicant interviews (or even with other written questions on the initial form). In all likelihood, alumni donation rates are also a significant factor in this process, with schools admitting the children of wealthy graduates (affectionately called “development cases”) in the hopes to continue encouraging financial support; although perhaps falling short of the legal definition of ‘bribery,’ such financial concerns certainly smell morally problematic.

Of course, in most cases, legacy admits are perfectly qualified candidates for admission on their own merits; it’s hard to tell what sort of benefits are granted to the Ivy League graduate, for example, because of her degree as opposed to her privileged upbringing or, indeed, because of her own talent and effort. No one has suggested that legacy students are inherently undeserving of their positions on the student rolls or that Brett Kavanaugh is not a qualified candidate for a Supreme Court position because of the conditions of his schooling; the concern is rather that granting preferential treatment to legacy students unfairly perpetuates socioeconomic disparities for reasons that are not clearly beneficial to anyone other than the colleges themselves.

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On Supposed Harm

Image of Sen. Grassley with two people behind him

Editor’s Note: The confirmation hearings of Brett Kavanaugh, the allegations against him, and the subsequent congressional hearing interviewing Dr. Blasey Ford have spurred many difficult, complex reactions. This week, we will be publishing varied perspectives on the spectrum of topics brought to the fore by Dr. Blasey’s hearing. This is the fifth article of that series.   

This past week, Brett Kavanaugh claimed his life and family were significantly harmed by Dr. Ford recounting her experiences with him: “My family and my name have been totally and permanently destroyed by vicious and false additional accusations.” The possibility that he may not receive the position of Supreme Court Justice has been framed by many as a punishment for behavior he performed as a youth, and therefore too stringent a comeuppance. Further, Kavanaugh “losing out” on this opportunity has been cast as part of the current climate brought about by the #metoo movement where supposedly men must be on their guard and are under unjustified attack.   Continue reading “On Supposed Harm”

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Himpathy: The (Pre-emptive) Word of the Year

"Believe Women Vs Kavanaugh" by Mobilus In Mobili liscensed under CC BY 2.0 (Via Flickr).

Editor’s Note: The confirmation hearings of Brett Kavanaugh, the allegations against him, and the subsequent congressional hearing interviewing Dr. Blasey Ford have spurred many difficult, complex reactions. This week, we will be publishing varied perspectives on the spectrum of topics brought to the fore by Dr. Blasey’s hearing. This is the fourth article of that series.   

Judge Brett Kavanaugh has a wife and two daughters. He is also credibly accused of sexually assaulting at least one (and quite possibly more) women over the course of the last five decades. Since his nomination by Donald Trump to the open seat on the US Supreme Court, the country has watched his confirmation proceedings in front of the Senate Judiciary Committee with unusual attention. Historically, this is a governmental process typically kept separate from the spectacle of public campaigns; for Kavanaugh’s, the room has been upset by loud protesters, long speeches from politicians, and by Kavanaugh himself, whose own statement this past Thursday excoriated the press, the Democratic party, and his accusers with a surprising lack of decorum.

Continue reading “Himpathy: The (Pre-emptive) Word of the Year”

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Sexual Abuse and the Rhetoric of Powerful Men

Photograph of Brett Kavanaugh with his hand raised in anger

Editor’s Note: The confirmation hearings of Brett Kavanaugh, the allegations against him, and the subsequent congressional hearing interviewing Dr. Blasey Ford have spurred many difficult, complex reactions. This week, we will be publishing varied perspectives on the spectrum of topics brought to the fore by Dr. Blasey’s hearing. This is the third article of that series.   

Brett Kavanaugh’s nomination has been contested since Dr. Christine Blasey Ford alleged that Kavanaugh sexually assaulted her three decades ago. Since Ford, Deborah Ramirez and a third accuser, Julie Swetnick, also have alleged sexually inappropriate behaviour from Kavanaugh.  Initially, Republicans attempted to rush through the nomination. But on facing public outcry about their seeming disregard for normal vetting processes, the Republicans permitted Dr. Blasey Ford to testify at a congressional hearing this past week. Dr. Blasey Ford’s controlled testimony about her experience has triggered a nation-wide distillation of grief and rage from sexual assault survivors.

In the wake of #MeToo, women are rejecting silence about their abusers en masse. Men are starting to get alarmed. Here, I focus on men as accused and women as accusers in part because it is reflective of the norm – one in five women are raped in their lifetime, while one in seventy-one men will get raped. Also, men are overwhelmingly represented in powerful positions, and are beneficiaries of social machinery that operate to keep them there. The suggestion that this gendered distribution of power could be challenged is raising serious anxiety for the Republicans, the party with an overwhelmingly male face. As one anonymous White House lawyer summed it up: “If somebody can be brought down by accusations like this, then you, me, every man certainly should be worried. “

Previously, the burden of responsibility for rape allegations has always been borne by the victim. Women are routinely scrutinized for being the recipients of sexual assault, while men’s actions are diminished as ”horseplay”, or drunken, youthful antics. Here, too, there are gendered laws as to how drink affects agency: a man who drinks automatically has reduced culpability for his actions, while a woman who drinks is de facto responsible for what a man does to her.

Now that the winds appear to be shifting slightly to ask more accountability from men, men are reacting with outsized emotions. Brett Kavanaugh’s petulant tirade following the testimony of his accuser, Dr. Blasey Ford, implied that he was owed one of the highest offices in the land without being subjected to scrutiny. And yet this appears to have worked for Kavanaugh – righteous male rage is an effective strategy to redirect narratives, empathy, and power to male perpetrators rather than to victims of sexual assault.

This indefatigable entitlement also characterizes a broader backdrop wherein men who have been accused by numerous women of misconduct are seeking returns to their former prominence.  Jian Ghomeshi, the Canadian media personality who was accused of sexual abuse by twenty women, was recently given a prestigious platform in the New York Review of Books. Ghomeshi’s self-indulgent essay came under fire for its mischaracterization of his offenses (for example, Ghomeshi said ”several” women had come forward rather than the actual number of twenty, and he characterized his actions, which included punching women in the head, non-consensual choking, and workplace harassment as being ”emotionally thoughtless”). Ghomeshi also expressed claims to newfound empathy, an empathy which seems misplaced in its primary fixation on other accused offenders rather than for the victims of his actions. Widely derided as an editorial choice, the publication of Ghomeshi’s essay triggered the departure of NYRB’s editor, Ian Buruma.  Rather than concede poor professional judgment in publishing an article that was neither fact-checked or published with journalistic due diligence, Buruma mourned that he simply wanted to hear from Ghomeshi after he was tried by a ‘court’ of social media, but found himself ‘pilloried’ in turn.  

This example reflects a common strategy of the sexual politics surrounding #MeToo: men rhetorically adopting the position of hapless victim of hearsay and public shaming, asking for ‘due process’ – whatever that is supposed to mean outside of a judicial system.  Surprisingly enough, judicial-sounding tropes of ‘courts’ and ‘due process’ in the context of public opinion have been rejected by none other than Mitt Romney.  In 2017, Romney tweeted in support of Leigh Corfman against Roy Moore, saying “Innocent until proven guilty is for criminal convictions, not elections.” Mitt Romney has a point. This rhetorical strategy may seem persuasive on its surface, but does not hold up to scrutiny. ‘Innocent until proven guilty’ and ‘due process’ are concepts which reflect a high standard reserved for criminal and civil prosecution, because inflicting punishment by the state is reasonably held to a high standard of proof.

Public opinion, on the other hand, does not and need not operate beyond the shadow of a doubt. Most of our decisions about people’s characters in everyday life and politics are made with reasonably plausible levels of certainty, rather than courtroom levels of certainty.  What these pleas for impossibly high standards of proof in talking about rape truly advocate is preventing any outing of powerful men as sexual offenders. But powerful men do not need our continued support. They need it least of all in a world where only six out of every 1000 rapists will ever end up in prison and it takes sixty female accusers to persuade a court that one powerful man is a rapist. And yet, these same men who rail against their accusers should be the first to seek to clear their names by formal avenues.  If Brett Kavanaugh were truly convinced of his own innocence, he should have pleaded for an FBI investigation, rather than Dr. Blasey-Ford.

Today, op-eds abound asking whether high-profile sexual offenders have finished their time-out yet, or ask whether #MeToo is ‘going too far’, revealing a strong identification and concern for powerful men who have abused their power. Surprisingly, these same voices show a complete lack of curiosity and vision regarding the present and future of victims who have come forth in the tidal wave of confessing their experiences, often at great personal cost.  When do they get to reclaim their power, productivity, joy, and carefree lives?

In this pivotal historical moment, it is important to reflect and critically scrutinize the use of hyperbole as a rhetorical power play. Misapplied uses of language can obfuscate who are the real victims in an imbalanced state of affairs.  Misleading rhetoric can even re-victimize those who have already been violated, while reaffirming the status quo. As Aristotle proposed in the first book of the Rhetoric, citizens and thinkers must peel beneath rhetorical performances to evaluate where the better case for justice lies. It may not necessarily rest with those who are protesting the loudest.

 

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Disrespect for Women—Indelible in the Hippocampus

Two women holding a sign that says "I believe Dr. Christine Blasey Ford"

Editor’s Note: The confirmation hearings of Brett Kavanaugh, the allegations against him, and the subsequent congressional hearing interviewing Dr. Blasey Ford have spurred many difficult, complex reactions. This week, we will be publishing varied perspectives on the spectrum of topics brought to the fore by Dr. Blasey’s hearing. This is the first of that series.

On Thursday, September 27th, Dr. Christine Blasey Ford appeared in front of the Senate Judiciary Committee to discuss her allegation that Supreme Court Nominee Brett Kavanaugh attempted to rape her at a high school get together in the early 1980s. Judge Kavanaugh also testified at the hearing, denying the allegations without qualification.  When asked repeatedly if he would support an FBI investigation that might potentially clear his name, he dodged the question.

By Friday morning, it seemed all but certain that the Kavanaugh nomination would be approved by the committee. There had been some speculation that Senator Jeff Flake (R-AZ) might be a holdout, but a statement released by the senator Friday morning indicated that he would vote to move the candidate forward after all.  Then something remarkable happened. Two passionate women approached Senator Flake with a message: “You’re telling all women that they don’t matter. That they should just stay quiet because if they tell you what happened to them, you’re going to ignore them.”

For many women, this nomination is, essentially, a litmus test for misogyny.  What’s more, it is taking place in a political context in which women already have reason to feel that they aren’t being taken seriously.  In this case, it’s up to a primarily male committee to decide which violations of a woman’s body and dignity deserve to be heard and investigated.

Navigating one’s relationship to one’s body is a challenging and ever-evolving existential feature of being human. No person lives a life untouched by this—we all experience scarring and blemishes, weight loss and weight gain, aging and wrinkling.  Looking on with very little control, our bodies often feel less like who we are and more like vessels in which we are trapped. Current cultural norms exacerbate this existential challenge to maddening levels in the case of women in particular because we are made, in countless ways, to feel as if we are reducible to our bodies.  Nevertheless, when we try to assert any meaningful sense of ownership over them, we are met with resistance. We are told whether and which violations of our bodies matter, and how much they matter. We are not only told that we are reducible to our bodies, we are told which features of our bodies we are reducible to.  

Aristotle argued that virtue is a social enterprise. Successful societies encourage and assist in the development of virtuous citizens.  Young citizens learn good habits by watching the behavior of role models in their governments and communities. We can only hope that today’s young men and women aren’t modeling their traits of character with respect to how to treat women on the behavior of contemporary politicians. Aristotle’s own attitudes toward women weren’t worthy of emulation either, but he was right that young people look to older people to determine how they should behave. They need better role models when it comes to the treatment of women—role models who understand that women’s interests should be taken seriously and their dignity should be respected.

Respect for the dignity of women dictates that women are treated always as autonomous beings, not as prizes in the alpha male Olympics. This goal is, of course, undermined when future presidents brag about being powerful enough approach women and grab them by the genitals and nominees to the Supreme Court boast about female conquests in high school yearbooks and then tell obvious lies when asked about it years later.

Respect for the dignity of women requires the acknowledgment that men and women alike are the authors of their own narratives, and female stories are successful and compelling even in the absence of physically stunning leading ladies.  Our success or failure as women has nothing to do with what we look like, how old we are, or how much we weigh. The understanding of women as creators of their own destinies is undermined by comments like the one then-candidate Trump had for his opponent, Carly Fiorina, in the Republican primaries: “Look at that face, would anybody vote for that?”

Respect for the dignity of women is undermined when we are treated as if we are epistemic inferiors—like we don’t know good evidence from bad evidence—especially when that evidence concerns our bodies. Dr. Ford, a well-respected college professor with dozens of publications, was treated as if she might simply just be confused about the attempted rape. Republicans on the Senate Judiciary Committee were quick to acknowledge that she was a good, credible witness.  During a break, after Dr. Ford had offered her testimony, Senator Orrin Hatch (R-UT) told reporters that he found her to be a nice, attractive woman.  On the topic of whether he believed what she had to say, he said, “It’s too early to say. I don’t think she’s uncredible. But it’s way early.”  Credible, nice people don’t typically invent conspiracy theories to unfairly affect the machinations of government, so what is Hatch trying to say here?  Similarly, after Dr. Ford’s testimony, Senator Lindsey Graham (R-SC) said, “I think something happened to Dr. Ford. I’m gonna listen to Brett Kavanaugh.”  After Kavanaugh’s testimony, Graham said, “I am now more convinced than ever that he didn’t do it, that he’s the right guy to be on the court.”  President Trump got involved in similar speculation.  He indicated a willingness to listen to what Dr. Ford had to say, but also said, of Kavanaugh, “I can only say this, he is such an outstanding man, very hard for me to imagine that anything happened,”

There is a decent amount of speculation that Dr. Ford is not lying, she’s simply mistaken.  This may be one way of interpreting the seemingly contradictory message that Dr. Ford is nice and credible, but that Judge Kavanaugh should be confirmed and is being treated unfairly.  Dr. Ford and Judge Kavanaugh are making statements that can’t both be true. All things being equal, the appropriate response seems like it ought to be suspension of judgment until more facts are known.  That isn’t what happened here. Instead, the conclusion is that Dr. Ford must be mistaken. Knowledge by acquaintance is fairly easily won in our day-to-day lives. For some reason Dr. Ford is being treated as if identifying her rapist in this case is tricky, even though she knew him before he raped her. Women get the message—when the word of a woman is in conflict with the word of a powerful man, it’s probably the man who remembers the event correctly.  In fact, it’s so likely that it is the man who remembers the event correctly that there is no reason for any additional investigation.  

A woman doesn’t have to take the harrowing step of testifying in front of a Congressional committee to have the experience of being treated as if she doesn’t know how to assess evidence.  Legislation across the country forces women’s hands when it comes to access to family planning, contraception, and abortion services. 38 states have “informed consent” laws in place according to which women seeking an abortion must be given a packet of information selected by the state legislature.  They must then wait some period of time during which they are supposed to reflect on the information given to them, often 24 hours. The information on which they are being asked to reflect is not information they sought out, it is unsolicited, and often unwanted, advice from the state legislature on what type of evidence women should take seriously when it comes to their bodies.  The implication is that women don’t know which considerations to take seriously on their own.

In a surprise turn of events, Senator Flake was moved by the words of the women who expressed that they were feeling marginalized.  He changed his vote. It didn’t affect the outcome in committee, but all parties involved know that Judge Kavanaugh is unlikely to win a vote on the Senate floor without Flake’s support.  Flake indicated he would vote no unless an FBI investigation was done into Ford’s allegations. Perhaps all is not lost, maybe some senators are proper role models after all. Then again, the investigation has been limited in scope and is not supposed to last longer than one week. Women’s interests should be given consideration, but not as much consideration as political interests.

 

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How Should We Consider Brett Kavanaugh’s Sexual Assault Allegation?

photograph of a woman holding a sign with the slogan "kava-nope" and a picture of Brett Kavanaugh

For several weeks, coverage of the already-controversial proceedings surrounding the confirmation of Supreme Court nominee Brett Kavanaugh has been dominated by the possibility of sexual misconduct on the part of the nominee. Prior to Christine Blasey Ford’s sexual assault allegation, Kavanaugh was already regarded by many to pose a threat to women’s rights. Those voices have now redoubled, resulting in the nomination committee delaying a vote on Kavanaugh’s confirmation until after Ford has testified before the committee. Kavanaugh has denied the allegation.

Given a standoff between two conflicting individual claims—and, as of yet, no formally presented evidence—there is no point to arguing about the validity of Ford’s allegation. Nor would it be fruitful to delve into anecdotes reflecting each party’s character: such a discussion may be interesting, but ultimately comes down to hearsay. Instead, let us take this moment to consider the full ramifications of Ford’s allegation. How should the nomination committee proceed to maintain its ethical integrity?

It seems clear that the decision to delay a scheduled vote in light of the allegation was a sound one. An appointment to the Supreme Court is a decision that will affect politics, policy, and therefore the lives of millions of Americans for years if not decades to come. Unlike the winners of elections, members of the Supreme Court are appointed for life; they will not be removed from their position except in the most extreme cases, let alone in the next election cycle. This suggests that any decision made by the Senate in this situation should be a deliberate rather than a hasty one. It is true that the United States government does eventually need a full Supreme Court to be operating as was intended, so there is a good reason to avoid indefinite delay, but the Court has managed for more than a year with only eight justices, and the court’s role in the government is rarely especially time sensitive—there is no reason to begrudge the committee another few weeks or even months in order to be sure of the correct decision.

When the committee has heard Ford’s testimony, allowed Kavanaugh to respond, and examined the available evidence, what should its reaction be? Perhaps more importantly, what should our reaction be? What are the circumstances that would justify denying Kavanaugh’s confirmation? The most extreme case would be if Kavanaugh were convicted of sexual assault. In that situation, most people would agree that appointing him to the court would be unethical. But it is worth investigating exactly why one would hold this view. Is it a problem to have committed any crime? Some would say yes, especially considering the Supreme Court’s role in interpreting laws for the national legal system. But should that include all crimes, including traffic violations? Most people would not hold themselves to the same standard. A compromise might be to take only felonies or violent crimes under consideration. And would this edict have a statute of limitations? The allegation against Kavanaugh is from when he and Ford were both in high school; can we entertain the possibility of dramatic changes in personality over the span of several decades? Then again, the case is mounting in favor of a pattern of unacceptable behavior on the part of Kavanaugh: a second allegation has been brought to bear, this time from Kavanaugh’s Yale classmate Deborah Ramirez.

Furthermore, should all public officials be held to the same standard? Is it only because Kavanaugh’s potential position involves the administration of law, or is it a matter of putting any kind of criminal in any position of power? The answer to this question would have major implications outside of this case, as allegations of misconduct are brought up in elections around the nation.

Another way of looking at this problem is to ask what is achieved by keeping someone off the bench because of a past crime. There are two distinct possibilities: either the crime compromises the ability of the perpetrator to carry out the duties associated with their position, or the denial of the Supreme Court seat is an extension of the punishment for the perpetrator’s crime. The goal is either to protect the American people from a dangerous agent, or to mete out retribution for a crime.

This conclusion informs our decision about less extreme hypotheticals around Kavanaugh’s case. He has not been convicted of a crime, and the assault alleged by Ford would have taken place when Kavanaugh was a minor, meaning that even if he had been convicted at the time, there would be no continued legal consequences in force today. If keeping Kavanaugh off the Supreme Court were only a form of retributive justice, it would be a difficult argument to support. However, if the aim is to judge Kavanaugh’s overall fitness for the court, taking Ford’s allegation under consideration might be prudent. While it could be argued that Ford’s testimony is very convenient to a perceived liberal political agenda, this fact alone should not be enough to disregard her testimony altogether. Her speaking out is no more politically expedient to the left than her silence would have been to the right. In a case outside of the political sphere, we would not assume ulterior motivation from an alleged victim of sexual assault.