Supreme Court, eh?
I've become a big admirer of Linda Greenhouse's reporting and analysis of the Supreme Court. She dwells on details and nuances that would be hard to see without being a knowledgeable and longtime observer of the court and in so doing highlights important signals that can then be considered by the layperson.
It's very troubling to read Kavanaugh's dissenting opinion in the South Bay United Pentecostal Church vs. Gavin Newsom case, which was also signed onto by Gorsuch and Thomas (though not Alito, though he voted with them). Kavanaugh's opinion rests on the idea that the state of California is discriminating against religion. He then interprets hand-selected information from that standpoint. Chief Justice Roberts rejects that deranged proposition by pointing out that the rules for churches are actually the same as for similar secular venues (indeed if anything more lenient toward churches) and that Kavanaugh's comparison of churches with business settings that are not at all similar to churches (from a disease-spreading perspective) is baseless. It is obviously not correct – a store that you walk through and do not linger in is not like a place where you stay in close proximity to people for an hour or more. And other places where you linger in close proximity have the same restrictions.
I encourage people to read his dissenting opinion. It's incredible to me that a justice on the Supreme Court is arguing from the starting point that the state of California is discriminating against churches. It's bonkers to begin with; but at the very least you would think that such an extreme accusation would require remarkable evidence as proof. But on the contrary – Kavanaugh treats the proposition itself as so believable that it actually serves as a basis for interpreting the facts in a particular way! It's completely backwards.
Kavanaugh also bizarrely argues that the pentecostal church that brought the case "would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities." Irreparable harm? From having a 25% occupancy cap on their church services inside of a building on one Pentecost Sunday? What man? This is the Supreme Court? A preposterous proposition, a dishonest defense of it, and a crazy conclusion? (Movie theaters can't do their normal thing either; if anything they are more likely to suffer irreparable harm since they could easily cease to exist, unlike the church. Is the state discriminating against them? Why does this not occur to Kavanaugh?)
Pardon me, is this the Supreme Court?
How can the Supreme Court have that level of argumentation, for starters? That's TV-propaganda level. These are supposed to be these vaunted legal minds – and we get this? And what sort of thinking is going on in these minds that they see state oppression of churches in this scenario where the same conditions apply to cinemas and lectures? How can it be discrimination against one entity when the same condition is fine for other entities? You have to be completely steeped in that paranoid paradigm of conspiratorial oppression to even see something to consider here. And as if it weren't bad enough that their conspiracy-thinking is piqued where there is no evidence of different treatment, they falsify the facts to build an argument around that paranoid suspicion!
This is farcical. The Supreme Court has, of course, always been a place where some justices shoehorn their views into legal arguments, as well as a place where other people actually strive to interpret the law impartially but sometimes fail. There is a difference between the two states. If we can't believe that people are at least striving to be impartial and principled, we can give up on every human endeavor that requires honest judging and adherence to rules and principles – in other words every endeavor that makes our lives tolerable. Even if we reject as naive the idea that any human is ever entirely free of bias and judging Solomonically from on high, the rigors of practicing law at the highest level should be so exacting that it is extremely difficult to advance bogus arguments. If we are to accept that humans are biased, then let us at least make it hard to get away with!
This opinion by Kavanaugh is both unprincipled and bush-league. It lowers the bar for how easy it is to pass bullshit in both arenas – integrity and quality – when it should be getting harder over time.
The essential rigor of the law
In one sense, the primary difference between the courts and politics is that the high judges who interpret the law simply have a higher bar to clear before they can bring their personal discernment into it. The politician, once elected, can advance any piece of stupidity that occurs to his mind. The judge, by contrast, has to successfully clear any number of impediments before the argument can even be lodged. The judge can't simply say “this law is crap” – she has to essentially prove it beyond the objections of other people who have dedicated their lives to crafting counter-arguments in a rigid system with reams of commonly accepted factual guardrails. The argument has to be law-proof. The law, in this sense, is essentially layers of difficulty that sift out inadequate arguments.
Without those layers of difficulty in place, the law is just politics by another name.
The Republicans, by stealing the seat that should have been appointed by Obama and now placing that paragon of judicial temperament, “what-goes-around-comes-around” Boof Kavanaugh, on the court, have overturned the rules of the constitutional system by removing the requirement that judges and the placement of high-court judges be subject to the rigors of the system. The layers of difficulty. It used to be that judicial appointments required votes from both parties – that was the layer of difficulty on the political side, and reinforced the difficulties on the legal side because no one could be considered for such a posting without having risen through the layers of difficulty established by the legal side alone. Now the Republicans are appointing young, unproven partisans who, in many cases, are regarded as unqualified by the profession, to lifetime judgeships.
What is the result of all this? Read Kavanaugh's opinion and see if you think that is the standard you expect of the highest court in the country. Scalia was a rascal and I think very unprincipled, but at least his erudition and rhetorical skill upheld the difficulty level of the court. It took a certain level of skill to argue against him – that is a rigor that the court needs. (He is not a good example because I think he was actually corrosive, with argumentation that was often merely erudite and rhetorically trap-strewn without being salient, but he is useful in illustrating the point.) The court needs principled actors, but also needs the rigor in its own right, because the difficulty alone is a protective element that rules out a lot of potential harm. As long as the court is balanced and the entrance rules are rigorous, the difficulty level alone is an effective prophylactic against the human failings of the members.
The court's peril is the country's peril
This opinion by Kavanaugh shows how much peril the court is in. There is no difficulty in his argument – it's a simplistically argued summary of paranoid bullshit. If that's the level we're dealing with, the court is just a political majority and nothing else. Roberts has the court hanging by a thread and is protecting the apparently outdated view of the court as the last bastion of impartial fealty to the rule of law by himself voting politically in the interest of the court itself – keeping the intemperate conservative majority from destroying its own credibility too hastily. But that is no solution either, because it is not real. He is only preserving the impression that the court still functions as it should by giving it the occasional imprimatur of balance as it, in reality, chips away at itself through political decisions.
Trump needs to lose for the sake of the court not only because the likely retirement(s) would give conservatives an undemocratic lever of power for possibly decades, but because the court itself is this close to losing any credibility it still has. It can perhaps hang on for a better day, a better era in which the court can perhaps restore itself to its actual function, as long as Roberts is the swing vote with an eye on the reputation of the court that bears his name; but if the conservatives other than Roberts have a majority on their own, it's going to be Kavanaugh-level politics right down the line and the court will be permanently discredited. It's fair to say that American democracy would be done for with a pathetic autocrat in the White House and a partisan Supreme Court that no one believes in.