Opinion | How to Fix the Supreme Court – by Emily Bazelon et al – The New York Times

How We Got Here

In the 1803 case Marbury v. Madison, the Supreme Court took for itself the power to determine the meaning of the Constitution. Ever since, the federal courts have used judicial review, selectively, as a counterweight to majority rule.

The court has hit historic high points by siding with minorities that lack political power, especially to expand civil rights. The signature example is the unanimous 1954 ruling that called for an end to legally mandated school desegregation in Brown v. Board of Education — a ruling embraced by every recent nominee to the court, across the ideological spectrum.

But the court has also gone historically off course in making major counter-majoritarian moves — and been smacked down for it by the elected branches. In the aftermath of the Civil War, Congress passed a law requiring the Southern states, in order to re-enter the Union, to allow Black people, as well as white, to vote to ratify the 14th Amendment, which promised equal rights.

When this pillar of Reconstruction was challenged in the case Ex Parte McCardle, Congress worried that the Supreme Court would strike it down. So it stripped the court’s jurisdiction over Reconstruction and raised the number of justices to nine. (It was the third time Congress had changed the number of justices during the 1860s.)

Opinion | The Senate’s Failure to Seek the Truth – By Emily Bazelon – NYT

By Emily Bazelon
Ms. Bazelon is a staff writer at The New York Times Magazine.

Sept. 28, 2018 177 comments

Twice as a reporter, I’ve interviewed women who have accused men of sexual assault and the men they accused. In both cases, the women looked me in the eye and told me about how they’d been raped, and then the men looked me in the eye and told me they’d never raped anyone. All four people spoke with force and emotion. In the moment, I wanted to believe each one. It’s uncomfortable to imagine that someone who seems wholly sincere is not. It’s confusing — it seems unfeeling — to turn away from someone who makes a vehement claim of truth.

If you watched Thursday’s hearing, in particular Christine Blasey Ford’s opening statement and Brett Kavanaugh’s, maybe you know what I mean. So then what? As a reporter, I looked for corroborating evidence as a means of assessing each person’s veracity. What else could I find out, and how did their accounts stack up against that? This is how investigators do their work. They find out as much as they can about the surrounding circumstances. Then it’s up to judges to weigh the facts and decide which account is most credible.

Judge Kavanaugh didn’t sound as if he was thinking like a judge. His partisan attack on Democrats wasn’t judicial, in any sense of the word. His approach to evidence wasn’t either.”