The job of a Supreme Court Justice is replete with contradictions. The Court is accountable to the people, and the Senate uses its “advice and consent” power to approve nominees. However, the Court must be independent of the people, rendering judgment based on its interpretation of the law, instead of serving a political master or agenda. The Court must generally defer to the democracy, allowing elected legislators to dictate policy. But the Court must unflinchingly champion our constitutional rights, upending democratic will based on vague constitutional amendments that are subject to multiple interpretations.
The difficulty of navigating these contradictions, which focus solely on the abstract roles a Justice must play, is compounded by the task of deciding the substance of specific cases, which are complex, multi-faceted, and often technical. We need experts on the Court – experts at reconciling competing principles, experts at developing a sound, consistent judicial philosophy that can apply timeless constitutional rights to a changing society, and experts at understanding legal texts, structures, and systems.
The process of approving a Supreme Court Justice should therefore be targeted to finding these sorts of legal experts, with sound judgment and impeccable analytical skills. We need Justices who understand that their decisions have human consequences, but who do not overly impose their own political sensibilities onto these consequences. Instead, the Senate confirmation hearings appear, based on the grandstanding of Senators on both sides of the aisle, to be a way of pandering to the basest instincts of the very people from whom the judiciary is designed to be independent.
To some extent, the political pandering of the confirmation hearings is due to the fact the Court has appropriated a great deal of power, interpreting the Constitution to include provisions far beyond the text. To some extent, our intractable partisan hackery problem is due to increased attention to the Supreme Court by citizens who either misunderstand or willfully ignore the role of the Court. Neither Democrats nor Republicans at this point want to unilaterally appoint a Justice whose jurisprudence does not well align with the general sentiment of their base. I propose a modest solution that could change the tenor of both the Senate confirmation hearings and the public’s thinking about the role of the Court.
Every Senator who questions a nominated judge, and every judge who is nominated, should complete this simple exercise: Name five important Supreme Court or court of appeals decisions where you agree with the outcome of the case as a legal matter, but disagree as a political matter. If our Senators cannot do this, they are not acting as good faith stewards of a process woefully in need of de-politicization. Senators and judges need to signal to the public that the proper role of a Justice is a technical, legal one, involving humanity but discarding reflexive, emotional prejudice. Senators need to prove that when they accuse judges of deciding cases based on policy preferences, they are not themselves doing the same thing. Satisfying this exercise can be based on either (1) precedent you would uphold as a matter of respect for stare decisis and settled expectations even though you disagree with either the political outcome of the case or its ideological approach, or (2) legal decisions you would render based on an honest reading of the law even though that reading contradicts with how you would vote on an issue politically.
Currently, it is not politically appealing for Senators to complete this exercise, even if they could (hopefully they can, but I am not convinced based on the Judge Kavanaugh confirmation hearings. Senators cannot currently tout principle over politics because constituents have a distorted and dangerous view of the role of the Supreme Court, which Senators (and, to some degree, the media) inflame in a vicious cycle. It’s time to change that view.
I’ll give five of mine:
- I would have upheld Abood based on settled expectations in Janus, even though I have some serious concerns with unions and believe there is some aspect of compelled speech to union dues.
- Just like 8/9 Justices, I would have overturned the judgment against the Westboro Baptist Church in Snider v. Phelps, even though I find their protesting at military funerals abhorrent.
- I would uphold the death penalty against a constitutional challenge even though I am strongly opposed to the death penalty as a matter of policy and would vote against it.
- Like 4/5 Justices, I would have voted to strike down the Bipartisan Campaign Reform Act in Citizens United, even though I think money has a detrimental influence in politics, because the campaign finance law at issue infringed upon core, protected political speech.
- I think the Commerce Clause cases have expanded the scope of the federal government far beyond what Article I allows, and likely where I would want federal intervention, but it’s way too late to rewind time and restructure our government.
Doing this simple exercise could remind us all of shared rule of law values and of the expert, elevated role that Supreme Court Justices undertake. I would be highly interested in others’ completion of the exercise, which inherently cannot be performed in an angry, hostile, partisan way.