Photo Source Phil Roeder | CC BY 2.0
One thing that the Brett Kavanaugh Supreme Court hearings destroyed was the myth of legal neutrality. That may be a good thing because it is time to recognize both that the Supreme Court and its Justices are not politically neutral and that neither should be.
An enduring myth of American politics is that the Supreme Court is above politics and that the Constitution and the law are neutral. This myth, perpetuated by Alexander Hamilton, the constitutional framers, and legal education, is central to the legitimacy of the Supreme Court and the decisions it reaches. For Justices such as Antonin Scalia who urged that the Constitution be interpreted by the intent of its framers, locating its meaning in their intentions was part of the myth. Legal neutrality is a powerful anchor for the court’s capacity to command obedience, providing a cover to suggest that the Justices were not simply politicians with robes. Law schools, in teaching individuals how to think like lawyers, often refuse to discuss the power and politics behind the law, wanting to claim instead that legal reasoning and methodology are neutral.
The reality is that the law is an instrument of power and politics, often reflecting the biases and ideologies of the judges who sit on the Court. Beginning in the 1930s legal realists such as Jerome Frank made that point. But other legal scholars such as Randall Kennedy, Catherine MacKinnon, and adherents of the Critical…