A Continued Cost of Justice Kavanaugh (and Justice Thomas)

Photo by Sebastian Pichler on Unsplash

Today the Supreme Court announced its decision to overturn the conviction of Curtis Flowers, a Black man who has spent the last twenty-two years on death row in Mississippi. The Court’s 7–2 decision, which made headlines this morning, was authored by Justice Brett Kavanaugh, with a dissenting opinion filed by Justice Clarence Thomas. The Court struck down Flower’s conviction on the grounds of evidence of racial bias in jury selection by Flower’s prosecutor.

Yesterday, the Court made headlines with the announcement of its decision that a World War I memorial in the shape of a 32-foot Latin cross on public land was permitted under the anti-establishment clause of the First Amendment of the United States Constitution. In that case both Justice Kavanaugh and Justice Thomas filed concurring opinions. Justice Kavanaugh’s concurrence in that case exhibits a respect and recognition of the perspective of the non-Christian opponents of the monument that was largely overlooked in the Court’s plurality opinion written by Justice Samuel Alito.

In reading these opinions, I am grateful that Justice Kavanaugh is producing well-written opinions. His opinions in Flower’s case and the Peace Cross case are examples of a Justice doing their job well. However, Kavanaugh’s presence at the center of these important political and cultural decisions strikes me as putting those of us reading, writing, and thinking about these cases in an unfortunate moral position.

This unfortunate moral position arises from the fact that Justice Kavanaugh was credibly accused of sexual misconduct by Dr. Christine Blasey Ford and several other women prior to and during his confirmation hearings for his appointment on the Supreme Court. Similarly, Justice Clarence Thomas was credibly accused of continual sexual harassment by Prof. Anita Hill prior to his confirmation in 1991. In both cases, their confirmation hearings provided American audiences with strong justification for concluding that the allegations against both men were true.

Both Hill and Ford ought to have been believed. Both Kavanaugh and Thomas ought to have removed themselves from consideration for positions on the Supreme Court. President George H. W. Bush should have retracted his nomination of Thomas. President Donald Trump should have retracted his nomination of Kavanaugh (and should have stepped down from consideration for his own office as well for that matter). The United States Senate should not have confirmed either man.

But both men were appointed, in the face of credible allegations. And the appointment of both men is now linked to the normalization of sexual assault. This puts us all in a losing position and many of us in ethical quandaries.

To mention in a humdrum fashion that Justice Kavanaugh wrote this and Justice Thomas wrote that is to normalize sexual harassment and sexual assault. It is to build up a history of saying “sexual assault isn’t such a big deal; you can commit it unrepentently and still go on to have a very successful career.” It is to say “we’ll act outraged when you’re first accused, but we’ll eventually get over it if you’re willing to continue to deny it and push through.”

This kind of normalization is harmful for victims of sexual assault. It is harmful to strong women like Anita Hill and Christine Blasey Ford, who despite their remarkable achievements have to deal with forever being linked to their harasser’s successful avoidance of the consequences of their actions. And it is harmful to the men who are being sent messages that will lead many of them to misunderstand the significance of sexual misconduct.

The alternative to normalizing the behavior is to continue to call it out; to mention or discuss it when referencing Kavanaugh or Thomas’ work and writing. But to do so comes with its own costs. It continually drudges up old wounds. It inflames political tensions that surrounded the nomination of these men. And perhaps most importantly, it distracts from the important issues the Court decides that deserves our attention.

The Supreme Court weighs in on many of the most significant and politically charged issues facing our nation. Having that dialogue in a productive and beneficial manner is hard enough as is. What to say or not say about Kavanaugh and Thomas’ past misconduct makes it only more challenging. To say nothing or to say something is problematic. It’s a damned if you do, damned if you don’t kind of situation.

Despite my calling attention to this moral dilemma, I have no interest in passing judgment on Kavanaugh or Thomas. I do not know their hearts. I do not know if they lied or if they genuinely believe everything they’ve said (and of course it’s possible due to memory failure, self-deception etc. that even if they did not lie that they were not telling the truth). To condemn them for condemnation’s sake is not my place.

But when I say I have no interest in passing judgment on them, I mean to say that judgment on them for its own sake is not my desire or purpose. However, due to their choices not to withdraw their own nominations for the Supreme Court, calling out aspects of their behavior is perhaps an unavoidable co-effect of working to avoid normalizing sexual assault.

By putting themselves in the limelight, by pursuing these positions of power, by treating the privilege of being on the Court as a right, Kavanaugh and Thomas have made the lack of consequences they faced in response to credible allegations of sexual assault about much more than themselves. And they’ve put us all in a position where speaking up is not simply about condemning them, because these issues are much bigger than blame or condemnation of individuals.

I don’t want to and shouldn’t normalize sexual harassment. I have an obligation to make clear that I find sexual misconduct unacceptable. I have an obligation to acknowledge the systematic ways in which women have been disempowered and to call out how the confirmation of Kavanaugh and Thomas over the credible allegations of women reinforce power imbalanced and a cultural of sexual predation. We all have that obligation.

Similarly, I seek to be someone whose conversation is productive. I seek to give the issues before the Court their own due. I seek to do as little as possible to alienate those from different political perspectives. I seek to be reasonable and cautious in my leveling of judgment on others. But I don’t want to shirk my responsibility to avoid normalizing sexual assault while achieving these other aims. This makes writing about anything connected to Kavanaugh or Thomas fraught with difficulty and imperfection.

By putting themselves into positions where they will continually be at the center of breaking news headlines, Kavanaugh and Thomas have done a disservice to us all. And at this time, naming that is the best way I know how to respond.



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Mark Satta

Philosophy professor and attorney writing about philosophy, law, religion, politics, queerness, and books, among other things. He/him