Christine Blasey Ford has returned to the news with the recent release of her memoir, One Way Back. You’ll remember Ford as the lead protagonist of the smearing of Brett Kavanaugh at the eleventh hour of his Supreme Court confirmation hearings in September 2018, with evermore fantastical allegations that the longtime federal judge and six-times-vetted public servant was actually a serial rapist.
Ford’s breathless accusation of a drunken sexual assault when both were teenagers in the early 1980s — “indelible in the hippocampus is the laughter” was her most-quoted phrase — was treated with the most reverence, even as none of her supposed witnesses were able to corroborate any of the details that she conjured from that otherwise hazy hippocampus.
Half a decade later, the magic is gone, or at least the expanded tale doesn’t bring any new insights even as its author is feted by the Democratic establishment for her “bravery.” One critic called Ford’s new book “a meandering, behind-the-scenes look at Ford’s choice to come forward about the alleged assault” but also “an airing of grievances — against the politicians, lawyers, and activists who turned her trauma into a political football, but also against those journalists who promised to tell her side of the story, with inevitably disappointing results.” Even the New York Times reviewer called her signature phrase “refrigerator poetry,” recommending a shower after reading the book but not exactly nominating Ford for a Pulitzer.
The media circus enjoyed revisiting one of its greatest hits but had long ago moved on to shinier attacks on the Supreme Court’s legitimacy. As I detailed in these pages not so long ago (“Contempt of court,” Aug. 11, 2022), left-wing activists, politicians, and pundits have decided that a court they no longer control is no longer worthy of respect. And indeed, the battle to confirm Kavanaugh showed that the highest court in our land is now enveloped by the same toxic cloud in which all of the nation’s public discourse resides.
So Ford’s memoir doesn’t so much reopen an old wound or provide fresh evidence of one particular justice’s malfeasance as punctuate the larger progressive effort to discredit the court as we enter the term’s home stretch. Even more, it’s a green flag to restart the race for this fall’s elections, in which Democrats seem to be running against the court as much as against former President Donald Trump.
It was less than a year ago, after all, that President Joe Biden said, “This is not a normal court.” Never mind that he made that pronouncement after a ruling supported by a large majority of the public, the 6-3 vote to end racial preferences in college admissions. Or that the other two big decisions that went Republicans’ way, allowing a graphic designer to decline a contract for a same-sex couple’s wedding and blocking student loan forgiveness without an act of Congress, were also supported by comfortable pluralities. Popular support is apparently irrelevant to irony-challenged arguments that “self-government is worth defending from an illegitimate Supreme Court,” as Washington Post columnist Jennifer Rubin wrote a week later.
These sentiments echoed what Sen. Elizabeth Warren (D-MA) said a year earlier, after the court overruled Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization case: “They have burned whatever legitimacy they may still have had. … They just took the last of it and set a torch to it.” She thus joined the election-denying Stacey Abrams in calling for court-packing, thus agreeing with her fellow Sen. Ed Markey (D-MA), who had posted after the leak of the Dobbs draft that a “stolen, illegitimate, and far-right Supreme Court majority appears set to destroy the right to abortion. … There is no other recourse. We must expand the court.”
But it’s not just ultrablue-state politicians and failed gubernatorial candidates who aim to discredit the Supreme Court, and not just in the wake of “partisan” rulings on social questions. After the justices unanimously turned back a challenge to Trump’s eligibility for the ballot last month, Keith Olbermann accused the court, including its Democratic-appointed members, of being “inept at reading comprehension,” such that it is “corrupt and illegitimate” and “must be dissolved.” Comedian Al Franken, meanwhile, who was elected to the Senate in a razor-thin disputed election and resigned under a cloud of sexual misconduct, a year earlier called the court “a very divisive entity now, institution right now. And the Supreme Court, to me, is illegitimate.” Franken went on to reference the blockade of the Merrick Garland nomination after Justice Antonin Scalia’s death in 2016, followed four years later by the quick confirmation of Amy Coney Barrett after Justice Ruth Bader Ginsburg’s death soon before the 2020 election.
Neil Gorsuch, whom Trump picked to fill Scalia’s seat, and Barrett may thus be at the heart of Democratic claims of illegitimacy, along with Kavanaugh, of course, but they’re not the only questionable ones. Erwin Chemerinsky, dean of Berkeley Law, wrote during the Kavanaugh confirmation process that none of the Republican-appointed justices should be there. After all, in the Left’s revisionist history, Justice Clarence Thomas is a sexual harasser who lied to the Senate, while Justices John Roberts and Samuel Alito were appointed by a president the court itself “selected” in Bush v. Gore. Plus, all the Trump appointees are doubly dubious, wrote Michael Tomasky in the New York Times, because they were nominated by a president who lost the popular vote and confirmed by senators representing low-population states.
And that’s before we even get to the “scandals” involving Thomas and Alito regarding travel and other gifts from wealthy friends. Yes, clearly if Alito hadn’t gone on a luxury fishing trip with Leonard Leo 15 years ago, he wouldn’t have voted to overturn Roe. And if Harlan Crow, whose wife, Kathy, is on the Manhattan Institute’s board, hadn’t been generous to Thomas, the justice would have a different view of the right to bear arms. For all the smoke hacktivist journalists put out, there’s no evidence of any fire in the sense of a quid to go along with the alleged quo. Nor even anything as serious as using court resources for personal benefit, as Justice Sonia Sotomayor did in having her staff gin up book sales ahead of speaking events.
But we all know that none of these complaints, going back to Christine Blasey Ford, are about “legitimacy” or “ethics.” They’re about the direction of the court. I get it: Those on the Left used to be able to count on judges to attain goals Democrats couldn’t achieve at the ballot box. Now the tables have turned. But Democrats should learn from their hero Franklin D. Roosevelt. In 1941, just four years after Roosevelt’s court-packing scheme failed, only one justice remained whom he hadn’t appointed or elevated.
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The Democrats could again take back the court the old-fashioned way, by keeping the political branches and waiting for natural attrition. It won’t happen overnight, but of late, the GOP does have a habit of snatching defeat from the jaws of electoral victory. Republican messaging on judges — originalism, not nebulous theories of social justice — has historically been more popular than any alternative, but that may no longer be the case in the post-Dobbs world.
Regardless, attacking the Supreme Court with unsubstantiated and half-baked ideas just contributes to the growing institutional distrust and norm-breaking I thought Democrats were supposed to stand against.
Ilya Shapiro is the director of constitutional studies at the Manhattan Institute. He is the author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court and the forthcoming Lawless: The Miseducation of America’s Elites and writes the Shapiro’s Gavel newsletter on Substack.
