Looking at what's behind the curtain

 When the U.S. Chief Justice John Marshall wrote that the federal government could not remove the Cherokees from their lands in Georgia, President Andrew Jackson supposedly said, "John Marshall has made his ruling; now let him enforce it."
 Most historians don't accept that quote as accurate,  but its point is certainly true. The supremacy of the Supreme Court is one of several things about the court that is true only if everybody important agrees to pretend it is true.
 The Cherokees were "removed" to Oklahoma, and there wasn't a thing the Chief Justice could do about it, alone nor with the other six (at the time) justices and all the clerks and bailiffs together. The President held the military power.
 When Chief Justice Earl Warren wrote the decision requiring school desegregation, President Dwight Eisenhower wasn't particularly happy to have the results dropped on his desk. He could have pulled a Jackson. What he did was enforce the order. He federalized the Arkansas National Guard to keep the mob from preventing the desegregation of Little Rock High School.
 The Cherokee ruling was ignored. The school desegregation ruling would have been voided had Eisenhower decided to "let Earl Warren enforce it" or if the Arkansas National Guard troops had mutinied against the commander-in-chief.


 The Supreme Court gets its power not from the paper the Constitution it's written on, nor from any inherent quality in what used to be "nine old men" and is now "nine old men and women." It gets its power because the president, Congress and most Americans tacitly agree to treat its rulings as the "law of the land" as a fact, not the convenient fiction it is.
 We have also tacitly agreed that the Supreme Court is not partisan, just nine extraordinarily skilled jurists who can find the path to truth through the complexities of the law.
 Over the past X number of years we have watched the tacit agreements unwind. You can start counting from Merrick Garland, or Clarence Thomas, or Robert Bork or the Nixon double-header of Clement Haynsworth and G. Harold Carswell, or Lyndon Johnson's failed attempt to elevate Abe Fortas to chief. Where you choose to start deploring will tell a lot about how you want the court to work.
 To maintain the fiction that the Supreme Court represents judicial wisdom, presidents used to study the recommendations of the American Bar Association, consult key members of Congress, talk to the candidates to make sure they were "OK," whatever that meant to the president, and announce their selections. The complicit media would go gaga over the nominee's ability to walk up the courthouse steps without tripping over his (or later, his or her) robes, and the fiction would continue.
 Our most recent case is nothing like that. Judge Kavanaugh charged that he was the victim of a campaign in which "millions of dollars in money from outside left-wing opposition groups" have been spent against him. He didn't add, but should have, that millions of dollars from outside right-wing opposition groups are being spent for him.
 Would that kind of money have been spent to fill a seat on a body of nine extraordinarily skilled jurists seeking out the "law of the land"? Is there that much money disinterestedly interested in "equal justice under the law"? There is hardly any point in asking. Every one of those dollars is a vote against the fiction that has allowed the Supreme Court to function as a civilized way to settle disagreements that exceed the capacities of Congress and presidents. Turning the court into Nine Old Hacks is a good start on unraveling a whole constitutional system of government.
  It isn't that the fiction can be exposed. Exposing it never bothered Gov. Orville Faubus (Eisenhower's Arkansas opponent) or Gov. George C. Wallace. But it shouldn't be exposed. When you see the man behind the curtain, you end up back in Kansas.