Yes, the Supreme Court faces a crisis of legitimacy. And we know exactly whose fault it is.

We do not know how the current controversy over the appointment of Judge Brett M. Kavanaugh will end, but one thing people seem to agree on is that the Supreme Court is facing a crisis of legitimacy. If Americans do not believe that the country's highest court is anything but a momentary partisan advantage, thoughtful observers say the foundations of democracy are weakened. Both parties should do something to remedy this dangerous situation.

None of this is necessarily false. But when we talk about the legitimacy of the Supreme Court, we need to clarify some things. If we put this question in the standard framework "both sides are at fault", we have seriously distorted what happened and what will happen.

Is the Supreme Court facing a crisis of legitimacy? Maybe according to your definition of "crisis". But it's almost entirely the fault of Republicans – and Republicans will never lift a finger to do anything.

We do not have to go back so far to remind ourselves of the moment when the confirmation of the candidates for a presidential post, except in case of a really unusual scandal, was given. There was a lot of political drama around the court and its decisions, but members of both parties would vote regularly for a candidate from the other party. Antonin Scalia was confirmed at 98 against 0; Anthony M. Kennedy was confirmed 97 to 0; Ruth Bader Ginsburg was confirmed at 96 against 3; and Stephen G. Breyer was confirmed by a vote of 87 to 9.

But somewhere along the way, partisan disagreement has become a sufficient ground for rejecting a candidate, and now we have reached a point where we expect Almost all senators automatically vote against a candidate from the other party. How did it happen?

You can tell a long story in great detail, but what brought us to this point were two events in which Republicans decided to abandon the established norms, as well as any sense of ownership, for the sole purpose to win. The first was Bush v. Goreand the second was the appointment of Merrick Garland by the Supreme Court.

Bush v. Gorefor those who were too young to remember, the case of 2000 in which the five conservative judges of the Supreme Court ceased to tell in Florida then, while a large number of votes were disputed and the state was trying to understand who really won. If you're really so young, it's probably impossible for you to understand the total insanity of this episode in our history, and how unlikely it seems that there would actually be a fair vote count – especially when Republicans have organized a riot that succeeded in closing the counting of ballots in a county, and that the whole process was overseen by Katherine Harris, who was Florida's secretary of state. Harris was also the co-chair of the George W. Bush campaign in the state, then ruled by Jeb Bush.

When there appeared to be a clear account, Conservative Supreme Court justices intervened and put an end to this situation, giving George W. Bush a 537 vote win in Florida and, with her, the presidency. The court had already made bad decisions, but probably never so clearly partisan, in which five judges simply decided to install their guy as president. In a revealing part of the decision, the judges wrote that, when entrusting the White House to Bush, the future appellants should not use the case as a precedent: "Our consideration is limited to the present circumstances, to the problem of the equality of protection in electoral processes generally have many complexities. "

In a dizzying dissent, Judge John Paul Stevens wrote, "Although we never know for sure the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the confidence of the nation in the judge as an impartial guardian of the rule of law. "

Since then, conservatives have been treating Bush v. Gore as an object of shame, something that should not be examined or discussed. What matters is that they have won.

After Bush v. Goreit has become impossible to seriously argue that the Supreme Court is watching us from the Olympic heights where the daily rounds of partisan politics are not worrying, that the judges are only neutral arbiters of the law and the Constitution. Yet that is exactly what the Conservatives have continued to say and do. When a Republican President appoints a judge, the Republican Party claims not to know or care about how this candidate could rule on issues such as the right to abortion or union protection, and the candidate claims that 39, there is only one referee no ideological interest at stake. This is a joke, but as long as everyone says it with a straight face, you can continue to cheat.

Which brings us to the second blow to the legitimacy of the court: Merrick Garland. In 2016, following the death of Scalia, Senate Republicans decided that as long as there was a Democrat at the White House, they would allow the absence of a Supreme Court candidate. It was appalling, it was despicable, it was anti-democratic, it was an affront to our entire constitutional system – and you could hardly find a Republican anywhere dissident strategy. Again, all that mattered was that they win. And today, we have a president elected by a minority of voters nominating judges confirmed by a Senate whose majority is elected by a minority of voters, who will make decisions supported by a minority of voters. # 39; electorate.

So when we talk about the legitimacy crisis of the court, let's not forget who brought us here. We should not forget either that Republicans do not worry Is this a crisis of legitimacy? We could discover tomorrow that Kavanaugh is throwing himself into a series of murders in several states every year for his summer vacation, and that 48 or 49 Republicans will always vote for him, because winning is all that matters. If he wants to vote to restrict the right to abortion, roll back civil rights and strengthen the rights of business, they do not care.

So what should we do? We can talk about institutional reforms, such as the adoption of 18-year terms for judges, which would mean that each presidential term would be given two terms, which would make everyone fight for life or death. But the truth is that once President Trump's candidate is installed (whether it's Kavanaugh or someone else), we'll begin a conservative legal revolution, whose reach will hardly be appreciated by the majority of the public. court.

It is possible that, in part in response, Democrats will win a succession of presidential elections and be able to change the balance of the court in their favor. In the end, this may be the only thing that restores the legitimacy of the court. But as long as Republicans have something to say about it, winning will be all that matters.