Yesterday, I wrote a post on how the changing of the guard at the top of the Supreme Court represents a chance to fashion an institutional solution to the institutional problem that came to the fore when allegations of sexual harassment were levelled against the Chief Justice in April/May 2019. I also wrote that the failure to grasp this chance would leave us treading the dangerous line between institutional failure and institutional complicity. This morning, I came across a piece by Dahlia Lithwick that expresses – in much clearer language – a few of the points I was trying to make.

Writing in the context of bearing witness to Justice Brett Kavanaugh’s senate confirmation hearings – at a time when he stood accused of rape by Professor Christine Ford – Lithwick talks about the temptation to “routinise” and “normalise” the “unprecedented seating of someone who managed to himself evade the very inquiries and truth-seeking functions that justice is supposed to demand.” (emphasis supplied) She talks about how the Senate Republicans’ refusal to “investigate, acknowlege, or even turn over” the existing evidence makes the incident difficult – or impossible – to simply “get over.” But for many people however, Lithwick goes on to acknowledge, “getting over it” is an imperative necessity in “in service of long-term tactical appeasement.” Lithwick then writes what (for me) are the two most important paragraphs of the article:

That is the problem with power: It incentivizes forgiveness and forgetting. It’s why the dozens of ethics complaints filed after the Kavanaugh hearings complaining about the judge’s behavior have been easily buried in a bottomless file of appeasement, on the grounds that he’s been seated and it’s too late. The problem with power is that there is no speaking truth to it when it holds all the cards. And now, given a lifetime appointment to a position that is checked by no one, Washington, the clerkship machinery, the cocktail party circuit, the elite academy all have a vested interest in getting over it and the public performance of getting over it. And a year perhaps seems a reasonable time stamp for that to begin.

The problem with power is that Brett Kavanaugh now has a monopoly on normalization, letting bygones be bygones, and turning the page. American women also have to decide whether to get over it or to invite more recriminations. That is, for those keeping track, the very definition of an abusive relationship. You stick around hoping that he’s changed, or that he didn’t mean it, or that if you don’t anger him again, maybe it’ll all be fine when the court hears the game-changing abortion appeal this year. (Emphasis supplied)

That the participants in the legal culture that surrounds the Supreme Court of India and the judiciary in general have exhibited a strong interest in “getting over it” when it comes to the events of April/May 2019 is a stark fact. It is exhibited in the complete silence that has followed the issuance of the “clean chit” to the Chief Justice (notwithstanding the procedural irregularities in the process, which were detailed at the time); but it has been exhibited even more sharply at this time, when newspaper pieces around the outgoing Chief Justice have discussed the important judgments that he is going to deliver in his last working week (as though the past has ceased to matter), and even more so, in the profiles – and interviews – of the incoming Chief Justice, where this matter should be front and centre – both in the sense of personal responsibility (past) as well as in the sense of institutional responsibility (future) – but is not.

But as Lithwick writes, “picking up an oar to help [us] get over [our] sins without allowing for truth, apology, or reconciliation has not generally been good for the pursuit of justice.” Far from an apology or a reconciliation, we still do not have an acknowledgment of the injustice that was done when the Chief Justice himself sat on the bench to hear the case against himself; or of the injustice that was done when three other judges attacked the character of the complainant from the bench; or yet again, of the injustice that was done when the In-House Committee’s ad-hoc procedures effectively convinced the complainant that the prospect of justice was so distant, that there was nothing further to be gained from participating in the process.

Lithwick ends her piece by writing:

I haven’t been inside the Supreme Court since Brett Kavanaugh was confirmed. I’ve been waiting, chiefly in the hope that at some point I would get over it, as I am meant to do for the good of the courts, and the team, and the ineffable someday fifth vote which may occasionally come in exchange for enough bonhomie and good grace. There isn’t a lot of power in my failing to show up to do my job, but there is a teaspoon of power in refusing to normalize that which was simply wrong, and which continues to be wrong. I don’t judge other reporters for continuing to go, and I understand the ways in which justices, judges, law professors, and clerks must operate in a world where this case is closed. Sometimes I tell myself that my new beat is justice, as opposed to the Supreme Court. And my new beat now seems to make it impossible to cover the old one.

Lithwick’s dilemma is an old and familiar one: at what point does continued participation amount to normalising the unacceptable? If you’re going to pretend that everything as if everything is alright, when it clearly is not, at what point does that pretence turn into cheating both oneself, and everyone else? In my mind, Lithwick’s line is the line between institutional failure and institutional complicity. At the point at which institutional failure turns into institutional complicity, it becomes necessary to say, with Lithwick, that “my new beat is justice, as opposed to the Supreme Court … and my new beat now seems to make it impossible to cover the old one.”

What that means in practical terms, of course, is a question that still awaits an answer.