Imagine you’re a law student today — remembering how Gorsuch was appointed for a seat that should have gone to Merrick Garland; thinking about how Kavanaugh was appointed despite the obvious truth of Christine Blasey Ford’s claims about his attempted assault on her; and anticipating the very real possibility that Trump may get yet a third appointment to replace Ginsburg.
The Supreme Court of your future will consist of a six-person right-wing majority.
Two of those justices will forever have the stench of credible charges of sexual assault or sexual harassment hanging over them.
Four of those justices will forever be the appointees of presidents who didn’t win the popular vote (or five justices if you throw in Alito, who was appointed in Bush’s second term, which Bush did win with the popular vote but wouldn’t have won had he not won the electoral vote, with the help of a conservative Supreme Court, in 2000).
Three of those justices will forever be the appointees of a president whose victory, many in elite liberal circles of the law believe, was secured with the illegal collusion of Vladimir Putin.
Put that all together and it’s hard for me to see how the law students and budding law professors of this generation aren’t going to view the Supreme Court and the enterprise of constitutional law with a skepticism so jaundiced, it will make the arguments of Critical Legal Studies and Critical Race Theory seem like Thomistic natural law.
An interesting historical parallel arises.
Imagine you’re a progressive law student coming of age between the 1910s and the 1930s. You’re a student of someone like Felix Frankfurter or his ilk, politicized by the labor movement, the Socialist Party, or the Depression to join various radical causes.
You’ve read a lot of legal realism. You come to a view of the Court as not a source of legitimacy but as the bastion of the American ruling class, forever enforcing the dictates and injunctions of capital. And you start casting about for a legal philosophy or theory that would not empower that Court but defang, even strangle, it.
I have to believe we’re in for some version of this from the legal left in the next decade or two: not an effort to rehabilitate the law in more progressive directions but an effort to systematically delegitimize the law and the Court, recognizing to some degree that that has already been accomplished by Mitch McConnell, Donald Trump, and the Right.
It’ll be interesting to watch.