Recently in Jurisprudence

My job as a Supreme Court reporter used to be to explain and translate the institution to people locked out of its daily proceedings. I did that reasonably well for 19 years, I suppose. Years upon years of sometimes partisan, often political brawling, from Bush v. Goreto the Affordable Care Act to Obergefell—and abortion, yes. But always swathed in black robes and velvet curtains, in polite questions, and case names and at least the appearance that this was all cool science, as opposed to blood sport.

What I have not acceded to is the routinization and normalization of the unprecedented seat stolen from President Barack Obama in 2016 for no reason other than Mitch McConnell wanted it, and could. And what I have also not acceded to is the routinization and normalization of an unprecedented seating of someone who managed to himself evade the very inquiries and truth-seeking functions that justice is supposed to demand. And so, while I cannot know conclusively what happened in the summer of 1982, or at the sloppy drunk parties in the years that followed at Yale, or in the falling-down summer evenings at tony D.C. law firms, or with the gambling debts, or with the leaked Judiciary Committee emails, I can say that given Senate Republicans’ refusal to investigate, acknowledge, or even turn overmore than 100,000 pages of documents relating to Kavanaugh, it is surely notmy job to, in the parlance of Justice Antonin Scalia, America’s favorite grief counselor, “get over it.”

The American public seems to be getting over the Kavanaugh hearings. New polling certainly suggests as much. And, having spent the bulk of last term lying low both doctrinally and also publicly, Kavanaugh appears to be ready to emerge now, in the form of a soaring Federalist Society butterfly. By his watch, apparently, it’s time, and so he will be a featured speaker at the swanky Federalist Society dinner next month (tickets are $250 for nonmembers and $200 for members). William Barr’s Justice Department last week awarded the “Attorney General’s Award for Distinguished Service,” the department’s second highest honor, to the team of attorneys that worked on Kavanaugh’snomination last year. It was a closed ceremony.

Two of the three female justices spoke out this summer to support their new colleague. They hailed him as a mentor to his female clerks or as a collegial member of the Nine and urged us, in the case of Justice Sonia Sotomayor, to look to the future and turn the page. It is, of course, their actual job to get over it. They will spend the coming years doing whatever they can to pick off a vote of his, here and there, and the only way that can happen is through generosity and solicitude and the endless public performance of getting over it. I understand this.

As a Supreme Court reporter, I am also expected to afford the new justice that same generosity and solicitude. As a journalist, I am finding it hard to do. After all, he is a man who has already publicly condemned his critics to suffer his wrath for embarrassing him. He is a man who has promised that his doubters and detractors will “reap the whirlwind.” He should know full well that after such behavior, he will be celebrated as a hero by some, and he should understand that for millions of others, the choice will be whether to let him back into the centrist, reasonable D.C. insider fold or to push him to become what Clarence Thomas became after his own hearings: a vengeance machine that neither forgives nor forgets. Nobody other than the most radical conservative wants another vengeance machine on the high court, not one who could otherwise be a fifth vote on occasion. So the name of the game is forgiveness and forgetting, in service of long-term tactical appeasement.

That is the problem with power: It incentivizes forgiveness and forgetting. It’s why the dozens of ethics complaints filed after the Kavanaugh hearings complaining about the judge’s behavior have been easily buried in a bottomless file of appeasement, on the grounds that he’s been seated and it’s too late. The problem with power is that there is no speaking truth to it when it holds all the cards. And now, given a lifetime appointment to a position that is checked by no one, Washington, the clerkship machinery, the cocktail party circuit, the elite academy all have a vested interest in getting over it and the public performance of getting over it. And a year perhaps seems a reasonable time stamp for that to begin.

The problem with power is that Brett Kavanaugh now has a monopoly on normalization, letting bygones be bygones, and turning the page. American women also have to decide whether to get over it or to invite more recriminations. That is, for those keeping track, the very definition of an abusive relationship. You stick around hoping that he’s changed, or that he didn’t mean it, or that if you don’t anger him again, maybe it’ll all be fine when the court hears the game-changing abortion appeal this year.

I wish we could have learned what Brett Kavanaugh has actually done, said, worked on, enabled, covered for, empowered. Perhaps the next book will reveal more. Perhaps the one after that. The collective public conclusion of the most recent book, by Kate Kelly and Robin Pogrebin, seems to be that he was a sloppy, reckless, drunk youth who has largely become better, and that it is perhaps unfair to hold men to standards that we somehow always forgive when they are still boys. We didn’t get to have that conversation either. And the people who most deserve to decide whether he is, in fact, cured of these alleged acts of youthful carelessness, violence, and predation—the women who say he has harmed them—have, other than Ford, neither been heard nor recognized. I’m not certain they subscribe to the narrative that he was a naughty boy now recovered. He spent his confirmation hearing erasing them, and his boosters and fans have made their lives since unbearable. At any rate, they are also powerless, now, to change what has occurred.

It is not my job to decide if Brett Kavanaugh is guilty. It’s impossible for me to do so with incomplete information, and with no process for testing competing facts. But it’s certainly not my job to exonerate him because it’s good for his career, or for mine, or for the future of an independent judiciary. Picking up an oar to help America get over its sins without allowing for truth, apology, or reconciliation has not generally been good for the pursuit of justice. Our attempts to get over CIA torture policies or the Iraq war or anything else don’t bring us closer to truth and reconciliation. They just make it feel better—until they do not. And we have all spent far too much of the past three years trying to tell ourselves that everything is OK when it most certainly is not normal, not OK, and not worth getting over.

I haven’t been inside the Supreme Court since Brett Kavanaugh was confirmed. I’ve been waiting, chiefly in the hope that at some point I would get over it, as I am meant to do for the good of the courts, and the team, and the ineffable someday fifth vote which may occasionally come in exchange for enough bonhomie and good grace. There isn’t a lot of power in my failing to show up to do my job, but there is a teaspoon of power in refusing to normalize that which was simply wrong, and which continues to be wrong. I don’t judge other reporters for continuing to go, and I understand the ways in which justices, judges, law professors, and clerks must operate in a world where this case is closed. Sometimes I tell myself that my new beat is justice, as opposed to the Supreme Court. And my new beat now seems to make it impossible to cover the old one.

• Merrick Garland
• Mitch McConnell
• Supreme Court
• Women
• Brett Kavanaugh