SCOTUS’ Existential Crisis in House

It May Not Just be a Legal or Political Question

In the fall of 2018, a former student I taught at Yale Law School, now a faculty member herself, invited me to speak at her new institution, the University of Colorado Law School.  Incidentally that day, the news broke that Brett Kavanagh had been confirmed into the Supreme Court of the United States.  The blow to the mores of these idealistic students was palpable; they could not believe that the pinnacle of their aspirations, SCOTUS, could stoop so low—and what began as a lecture turned into a group therapy session for all those present.

A similar moment of letdown for my generation may have been the 2000 SCOTUS election of Bush/Cheney over Gore/Lieberman.  Literally everyone going to law school had been taught that SCOTUS, for its own credibility’s sake, would never wander so deeply, decisively, and potentially cataclysmically into such a dangerous “political question” as to decide the results of a democratic election—and certainly not by such an ominous, clearly politically partisan 5-to-4 divide.  The Court used the excuse that it was critically necessary for it to in effect decide the presidency to avoid further turmoil and unacceptable uncertainty in American politics.  But at that time, just twenty-four years ago, the authority of the Court and belief in the legitimacy of the Court were considerably higher than is the case today.