We like to think of the Supreme Court as a nonpartisan and completely independent branch of government that makes sure laws passed by Congress and the states conform to the provisions of the United States Constitution.
The Supreme Court aspires to that Olympian detachment and judicial neutrality, but seldom achieves it. Like it or not there is a political substratum in court appointments, and it can produce great political tension at unsettled moments in American life. Like now.
Presidents nominate Supreme Court justices and the Senate has to confirm. There has been occasional trouble since the very beginning. The first justice to be denied a seat on the court was a man named John Rutledge. It was 1795, just seven years into the new Constitutional order. Rutledge had written an op ed piece critical of the Jay Treaty—a 1794 treaty with Britain that tried to resolve certain lingering issues from the War of Independence. That was enough for a Federalist Senate to scotch his candidacy.
Jefferson came into office in 1801 in what he called the Second American Revolution. But poised to prevent that revolution was Chief Justice John Marshall, Jefferson’s distant cousin. He was put into his life-tenured position in the last months of John Adams’ failed one-term administration. Adams, who distrusted Jefferson’s democratic radicalism, essentially engaged in last-minute court packing—Marshall and dozens of other midnight appointments—to make sure Jefferson did not take things too far to the left. Marshall went on to serve for 34 years. He was perhaps the greatest of all Supreme Court justices. He was indeed a thorn in Jefferson’s side. Marshall wanted America to be a great centralized nation state, not a confederation of sovereign states. Marshall envisioned a nation that prized the sanctity of contract above any temporary notion of social justice. He despised Jefferson’s vision of a lightly-governed, inward-looking, agriculturally-based loose association of proud commonwealths like Virginia and Pennsylvania. We now live in Marshall’s America, not Jefferson’s.
Jefferson struck back at the judiciary in 1804 by convincing his partisans in the House of Representatives to impeach Supreme Court justice Samuel Chase, a signer of the Declaration of Independence who had become an obnoxious and outspoken anti-democrat from the bench. The question was: can you impeach a justice for what you regard as his nasty politics. The US Senate chose not to convict Chase. Jefferson seems to have sensed that he was playing a dangerous game, one that could erode constitutional stability. In the aftermath he admitted that such impeachments were a bungling enterprise and he desisted from meddling with the independence of the judiciary thereafter. Jefferson appointed three justices to the Supreme Court. Every one of them wound up disappointing him.
The last attempt to pack the court was in 1937 when Franklin Roosevelt, just re-elected in a landslide, attempt to increase the number of justices from nine to fifteen so that his emergency New Deal legislation would not be struck down by judicial conservatives any longer. Congress balked. Even Democrats in Congress, including senators and representatives devoted to the New Deal, refused to give Roosevelt such unprecedented power. He was frustrated, but this is how our system is supposed to work.
What we should want is a justice with a first-rate mind, great analytical powers, an unusually high capacity for legal discernment and nuance, a deep grounding in the history of law, the history of natural rights, and the history of constitutions, particularly our Constitution. What we want is someone who knows a great deal about original intent but is not a slave to original intent (that was then, this is now, and by the way that constitution was written to protect slavery, so how original do we really wish to be?) We want someone who prizes a strict protection of human rights over government efficiency or economic prosperity. What you most want on a court is a few crabby civil libertarians who understand that the whole genius of America is to leave as many people alone as possible as often and emphatically as possible.
So why are we already locked into an angry national cage match on Roe V. Wade, the abortion decision issued by the Supreme Court in 1973? Both parties are behaving in a deplorable manner: The Republicans want the nominee to pledge to overturn Roe V. Wade. The Democrats insist that he or she hint that she will leave current abortion law in place. Not only is this the wrong basis on which to give someone life tenure, but it trivializes the third branch of our national government into a public policy club consisting of nine unelected and largely unaccountable persons. The great questions of a great nation should not be decided by nine unelected individuals. They are men and women like other men and women, capable of nobility and capable of pettiness, vengefulness, ignorance, prejudice, bigotry, pride, and self-aggrandizement. They have good days and bad. They see some issues with great clarity, and others with the kind of muddled gut reactions that characterize all of the rest of us. The future of this country should be in the hands of an infinitely wider body than the Supreme Court. Our current approach is not much different from letting the starting lineup of the Chicago Cubs determine the future of the United States.
I believe the nomination process should be taken out of the hands of American presidents, who misunderstand and misuse their appointment power for narrow and often temporary purposes, and put it instead into the hands of a severely nonpartisan think tank of constitutional experts who look for raw judicial talent irrespective of the person’s political views. Once the foundation designated someone of outstanding merit, the Senate would confirm or deny with a straight up and down vote. America is awash in men and women who would be outstanding Supreme Court justices. But the very last questions we should want to ask them is where they stand on Roe V. Wade, or the Affordable Care Act, or affirmative action.