We fought. We argued. We made calls, wrote emails, and signed letters. But we’ve lost this battle. Brett Kavanaugh sits on the Supreme Court. What can we do now? Here’s one thought:
Let’s not place the word “Justice” in front of his name.
The language we use to portray the world, including the Supreme Court, shapes how we perceive the world. Before 1980, Supreme Court opinions and commentaries about the court referred to its members as “Mr. Justice _________.”
The justices commonly referred to one another as “My Brother __________.” When Sandra Day O’Connor joined the court, all of that stopped almost immediately. It had to, because it no longer made sense.
The changes in language prompted by Justice O’Connor’s arrival shifted how we think and talk about the Supreme Court. The court no longer radiates the aura of an insular society, bound as if by blood. It has lost access to a contestable but uncontested language of family and gender. It sits a little closer to the ground and feels a little more fallible.
Of course, the Kavanaugh problem is different. Here I’m proposing a change in language that’s deliberate, selective, and aggressive. But it’s exactly as instrumental as the abandonment of “Mr.” and “Brother,” designed rather than conceded to achieve a comparable shift in how people perceive the court. Kavanaugh doesn’t deserve the respect traditionally shown to Supreme Court justices, and a court with him on it doesn’t deserve the traditional presumption of legitimacy.
Kavanaugh stands credibly accused of criminal sexual assault. His Senate Republican advocates successfully whitewashed those accusations, dehumanizing the survivors in the process. His meltdown before the Judiciary Committee revealed incurable partisan bias and an abject lack of judicial temperament. Senate Republicans rammed Kavanaugh through the confirmation process for an indefensibly political reason: to beat the clock of hazardous midterm elections. Kavanaugh is a minority justice — appointed by a president who lost the popular vote, confirmed by senators who represent far less than half the population.
He has his seat on the Supreme Court. We have to acknowledge and fight his power. That doesn’t mean we have to dignify his name by honoring his stature. Alongside Chief Justice Roberts, Justice Sotomayor, and the others, we can simply discuss the work and actions of one Brett Kavanaugh.
Some might object that not calling Kavanaugh “Justice” is petty, meaning either vindictive or inconsequential. As to vindictive, so what? We have ample reason for anger. In any event, the motives for how we refer to Kavanaugh don’t matter, only the effects. Which brings us to inconsequential. Certainly delinking “Kavanaugh” from “Justice” is a small act. It’s no substitute for calling out ideological bias in his judicial opinions, for demanding further investigations into his abuses and lies, or for leveraging his sham confirmation to get boots on the ground and voters to the polls. We can, and should, pursue all these avenues.
But this isn’t a zero-sum game. We use our language constantly. It should reflect and project our most deeply held convictions.
Why strip “Justice” only from Kavanaugh? Clarence Thomas also stepped over a sexual misconduct survivor and onto the Supreme Court. Neil Gorsuch too is a minority justice, one who owes his ill-gotten seat to Senate Republicans’ unprecedented shafting of Merrick Garland. Such scandals, and the erosion of norms that produced them, debase and delegitimize the whole Court. Why call anyone “Justice” anymore?
Such questions can help clear a path to broader critical engagement. We need to discuss frankly how our own writing and speaking can and should frame this grotesque shadow of a Supreme Court. Perhaps our withholding of “Justice” shouldn’t end with Kavanaugh. At the very least, however, he’s the right place to start.
Words have power. Every considered or unexamined choice we make about how to write and talk puts meaning into the world. Let’s use our words to speak righteous truth about Brett Kavanaugh’s unjust power.
Gregory Magarian is professor of law at Washington University in St. Louis and author of Managed Speech: The Roberts Court’s First Amendment. He clerked for Justice John Paul Stevens and led an American Bar Association reading group in evaluating Justice Elena Kagan’s legal writings during her confirmation process. His education at Yale overlapped with that of Brett Kavanaugh.