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Kavanaugh and the Myth of Judicial Independence

By Amar Diwakar

Supreme Court nominee Judge Brett Kavanaugh is primed to be Trump’s bulwark against any future indictment by the Mueller investigation – given his subscription to the unitary executive theory. Not only that, with the aid of dark money forces and the ultimate sanctioning of the Federalist Society, Kavanaugh is also tabbed to be Corporate America’s man in the land’s highest court. And with the Republicans on the verge of restoring their SC majority given his appointment, it stands to reason that the “Roberts Five” will be ready to run roughshod: judicial principles (even “conservative” ones) be damned on the road towards securing right-wing corporate interests while undermining the interests of labor, minorities, and women.During day one of Kavanaugh’s confirmation hearing at the Senate Judiciary Committee, there were some worrying statistics used to illustrate the hijacking of the judiciary by special interests. Incorporating an analysis of recent Supreme Court jurisprudence and Kavanaugh’s judicial record into his opening remarks, Senator Sheldon Whitehouse (D-RI) observed that since Roberts became Chief Justice, in 80 cases which went 5-4 that had interests important to the big funders and influencers of the Republican Party, all Conservative Justices went off on partisan excursions 92% of the time. And of those 73 cases which all implicated a major GOP interest, there was a troubling pattern: each time a big Republican corporate or partisan interest was involved, the big Republican interest won. Every. Damn. Time.

An examination of the Roberts Court’s 5–4 decisions reveals that, when the Roberts Five (Chief Justice Roberts, Justice Alito, Justice Kennedy, Justice Scalia/Gorsuch, and Justice Thomas) forms the Court’s majority, they agree with conservative amici curiae (“friends of the court”) 92 percent of the time. Further, in these cases, the Roberts Five has endorsed the positions advanced by the high-profile conservative groups the Chamber of Commerce, the Criminal Justice Legal Foundation, and the Washington Legal Foundation 100 percent of the time. In its 5–4 decisions, the Roberts Five have opened up the doors for dark money to flood the political system, rolled back important voting rights and environmental protections, and made it easier for employers to discriminate against their employees.

Stare decisis, textualism, limits on justiciability, even the Federalist Society’s darling “originalism” were all transgressed by the court majority, and all to the benefit of the rich, and powerful, and the political agents of the rich and powerful. And with respect to Kavanaugh’s jurisprudence on the D.C. Circuit, it was revealed that in the most controversial and salient civil cases – those decided by bare 2-1 majorities – he votes to advance far-right and corporate interests 91% of the time.Amongst the perpetual norm shredding and assembly line of protestors peppering the hearing since it began, two DNC presidential contenders for 2020 have attempted to rise up and throw the kitchen sink at proceedings. Yet Corey Booker’s “Spartacus” moment and Kamala Harris’ stone-cold prosecutorial chops aside, the Democrats’ only hope will rest on the miraculous flip of at least two GOP senators. Kavanaugh’s appointment is all but a formality at this point (despite the fact that thousands of documents detailing his formative tenure during the Bush years are being suspiciously withheld from the committee), as the Republicans with their Senate majority will toe the party line and vote to confirm him with the midterms around the corner. All the dirty work the GOP did during the past years of stymieing Obama’s judicial picks left numerous vacancies to be filled by Conservatives, a strategy that has handsomely paid off now that they are in control of Government.

Of all the damage that the Trump era will have wrought upon the fabric of American democracy and the rights of its citizens, the legacy of his two SCOTUS appointments, Gorsuch and Kavanaugh, will undoubtedly reverberate – whether it be on issues of abortion & civil rights, corporate liability, gun control, collective bargaining, employee discrimination, and environmental protections – for decades to come.

Amar Diwakar is a writer and research consultant with Global Risk Intelligence. Amar has an MSc in International Politics from SOAS, University of London. (This article has first appeared on Splintered Eye. To read the original article click HERE)

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