On Monday night, Donald Trump led the entire U.S. Supreme Court into an ambush. At a ceremonial swearing-in for Trump’s latest appointee, Justice Brett Kavanaugh, the president launched into a political diatribe that made a majority of the court visibly uncomfortable. “On behalf of our nation,” Trump declared, “I want to apologize to Brett and the entire Kavanaugh family for the terrible pain and suffering you have been forced to endure.” He decried the “campaign of political and personal destruction based on lies and deception,” and asserted that Kavanaugh had been “proven innocent” of sexual assault allegations. Then he praised Senate Majority Leader Mitch McConnell, Republicans on the Senate Judiciary Committee, and Sen. Susan Collins, the latter of whom he credited for supporting Kavanaugh in a “brave and eloquent speech.”
Fifteen hours after this GOP pep rally, the justices assembled at the Supreme Court to hear arguments in two criminal sentencing cases, marking the first time Kavanaugh took his new seat on the bench. If Chief Justice John Roberts hadn’t formally welcomed his new colleague—“We wish you a long and happy career in our common calling”—it would’ve been tough to tell that anything had changed. The justices settled into their groove, and Kavanaugh jumped into the action, seemingly right at home. While the rest of the country continues to convulse over his confirmation, the justices seem determined to move past Monday’s partisan spectacle and go about their business as usual.
This projection of continuity—of legitimacy, really—stood in remarkable contrast to the bizarre White House event the entire court had been forced to endure. Before waxing lyrical about his Republican allies, Trump thanked each member of the court individually for attending the ceremony. The justices, unsure how to respond to this scripted demonstration of gratitude, took turns awkwardly acknowledging the president. Justice Ruth Bader Ginsburg looked up, then away from Trump. Justice Stephen Breyer flashed a nervous grin. Justice Samuel Alito appeared to be in physical pain.
After that, the justices mostly clasped their hands together and stared at the ground. They looked uneasy before Trump started commending the (Republican) lawmakers who’d helped elevate Kavanaugh to the bench. Once those blandishments began, the justices either held their applause or clapped with polite restraint, like a parent applauding someone else’s kid at a recital. Only Justice Clarence Thomas, a friend of the Trump administration, heartily applauded each politician, clapping with special vigor for Mitch McConnell.
It’s safe to assume that none of the justices expected to be used as props at a small-scale Trump rally. (“Joining us for tonight’s ceremony is every sitting Supreme Court justice!” Trump announced before the painful thank-a-thon.) Justice Neil Gorsuch’s 2017 White House ceremony was, by comparison, a muted affair; back then, Trump refrained from attacking Democrats or exalting in the glory of every Republican on the Senate Judiciary Committee. But Kavanaugh’s confirmation was much harder fought than Gorsuch’s and hit closer to home for Trump. The accusations of sexual misconduct against Kavanaugh clearly rankled the president on a personal level. And he couldn’t resist reminding Democrats that their “lies and deception” had failed to foil his second Supreme Court pick.
The justices looked much more comfortable as they filed onto the bench Tuesday morning. Before arguments began, Kavanaugh chatted amiably with his new seatmate, Justice Elena Kagan; the two whispered and laughed like old friends. When Kavanaugh asked his questions, he appeared determined to prove he was prepared, even citing the exact page of a precedent to prove a point. But he was also respectful to his colleagues and courteous with attorneys—a stark contrast with Gorsuch’s notorious early days on the bench, when he subtweeted Alito and talked over everyone.
Tuesday’s cases are not blockbusters, but they will provide a glimpse into what kind of conservative Kavanaugh will be: a law-and-order stickler (like Alito) or a libertarian formalist (like Gorsuch). Both involve the Armed Career Criminal Act, a draconian federal law that jacks up sentences for repeat offenders. ACCA is plagued by maddeningly hazy language, and the court has already lopped off a key provision, ruling that it violated due process. The latest cases require the court to determine how much “physical force” a defendant must employ during the commission of his crime to qualify for ACCA’s sentence enhancement and whether burglary of a vehicle triggers its penalties.
ACCA’s only consistent defender on the Supreme Court is Alito, who did not attempt to conceal his frustration with the court’s gradual demolition of the law. “You’re not exactly on a winning streak here in ACCA cases,” Alito told Erica Ross, a government attorney. “You might have gotten a hint that a majority of the court really hates ACCA and is picking it apart bit by bit by bit.” He added: “In my humble opinion, in this area, we have made one royal mess. Maybe we ought to go back and correct our own mess.”
Alito must have been pleased, then, when Kavanaugh asked a series of questions that evinced skepticism toward criminal defense attorneys’ efforts to narrow ACCA’s scope. Kavanaugh is not a tactical questioner; he doesn’t try to shatter an argument he disagrees with and bolster one he likes. But he was notably deferential to the Justice Department lawyers who are trying to prop up ACCA—another stark comparison with Gorsuch, who peppered the DOJ attorneys with sharp inquiries.
Although everybody leaned forward in anticipation the first few times Kavanaugh spoke up, he seemed like an old hand. The other justices slipped into their routines, too. Ginsburg quibbled with Alito. Breyer asked a quixotic, multipart question that was really more of a cry for help. Justice Sonia Sotomayor leaned over and pinched Gorsuch to illustrate a hypothetical, and Gorsuch made a funny face. Thomas leaned back and closed his eyes for several minutes.
The court, in short, tried very hard to ignore the months of political warfare and emotional agony that preceded Kavanaugh’s admission to its private club. Democrats hoping for the liberal bloc to disregard or ostracize the newest justice will be sorely disappointed. These justices recognize that Kavanaugh throws the court’s legitimacy in peril, and are eager to shore up its institutional prestige. That requires playing nice with Kavanaugh. These justices could have declined their invite to the White House on Monday night or given their new colleague the cold shoulder on Tuesday morning. They did not. Instead, they embraced him as one of their own.
Progressives may find Kavanaugh’s warm reception at the court objectionable, even repulsive. They may believe that, by treating him with such respect, the liberal justices are legitimizing him, helping him to cast off the cloud of doubt that followed him to the bench. But these justices do not want to lose any hope of grabbing his vote in a closely divided case—and they all place the court’s eminence above their own proclivities. A large portion of the country may still condemn him. But within the Supreme Court, there will be no resistance to Justice Kavanaugh.
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Mark Joseph Stern covers courts and the law for Slate.
Slate · by Mark Joseph Stern · October 9, 2018