A perception of partisanship poisons the Supreme Court

Late last month, as the Kavanaugh conflagration ignited, Justice Elena Kagan noted that "the court's strength as an institution of American governance depends on people believing it has a certain kind of legitimacy -- on people believing it's not simply just an extension of politics, that its decision making has a kind of integrity to it. If people don't believe that, they have no reason to accept what the court does."

But how much more difficult is it for people to "believe that" -- after all of this?

Perhaps Kavanaugh, after all the vitriol engendered by his nomination, will go out of his way to prove himself the collegial justice he promised to be, "a team player on the team of nine," as he so soothingly put it. Perhaps, but history also teaches that pitched confirmation battles, whether for judgeships or executive branch positions, also have the tendency to embitter the targets of opposition and cement them even more firmly in the embrace of their ideological compatriots.

Perhaps, as well, the chief justice will refrain from fully unleashing the power of his buttressed new majority, taking smaller and slower steps than he might otherwise. Then again, even justices are susceptible to some degree of peer pressure; Roberts has already suffered opprobrium from fellow conservatives for his supposed treachery in rescuing the Affordable Care Act.

And even the justices can only dodge so much for so long. The coming years will bring cases on the scope of abortion rights, the tension between gay rights and religious liberty, and the contours of the Second Amendment. These are all issues destined to expose the ideological divides on the court, and that risk deepening the perception of partisanship that the justices, otherwise fractured, would unanimously agree is poisonous to their institution.

========

Ruth Marcus' email address is ruthmarcus@washpost.com.