Why Is the Supreme Court supreme?

Because the US Constitution says so. And that’s the way it should be, even if its decisions aren’t always to our liking.
Thomas C. Reeves | Jul 5 2010 | comment  



 

During the recent Senate confirmation hearings on Elena Kagan's nomination to the United States Supreme Court, people from both major political parties expressed doubts about the process. Since 1987 and the vicious attack by the Left on conservative legal expert Robert Bork, the hearings have become intellectually vacuous, scripted, and predictable. Many Senators complain that they learn little from them; in 1995 Kagan herself called the hearings a "vapid and hollow charade". Kagan revealed little more than that she was glib and charming; Sonia Sotomayor, President Obama's first nominee, waltzed successfully through the hearing process in the same way.

The nominations are deeply involved in politics, of course. Most knowledgeable people understood that Kagan and Sotomayor were named because they were liberal and female. And Democrats had the votes in Congress to do as they pleased. The political angle is reflected in public opinion as well. During the Kagan hearings, a Fox News poll revealed that 64 percent of Democrats would vote to confirm her, and 61 percent of Republicans would not. The independent vote was almost evenly split. (But let us not forget that the general public knows little about politics. Twenty percent of those describing themselves as independents were undecided. When Elena Kagan's name was presented without description, 40 percent of voters interviewed said that they had never heard of her.)  

Beyond the charade of the confirmation process, however, lie several questions about the very nature of the Court and the future of this nation that we seldom confront outside sophisticated journals and the college classroom. Here are five.

In the first place, why should the American people be ruled by nine unelected lawyers? The Founding Fathers, as every high school student should know, did not even envision the concept of judicial review. That came with Federalist John Marshall. From the Progressive Era in the early 20th century, and especially after World War II, the Court transformed itself into the supreme authority in virtually all areas of American life. Congress has the constitutional authority to limit what the Court can do but fails to take such action. Why?

Second, why does the membership of the Supreme Court fail to reflect the entire nation? Not a single member is a Protestant. (If the Catholics on the Court obeyed the teaching of their Church, they could overturn much of the leftist agenda now dominating American culture.) With the retirement of John Paul Stevens and the seating of Kagan, the justices will be graduates of only two law schools. The only African-American on the Court holds conservative views that are rejected by most American blacks. The American Indian community has formally requested representation.

Third, in the hearings we are told in grave sermons about the necessity of an objective judiciary based solidly on the Constitution. Every nominee expresses great respect for the concept of law as opposed to mere opinion. But isn't all of this disingenuous? Justices repeatedly, often passionately, vote on critical issues in ways that predictably express their personal and ideological beliefs, overturning and creating (e.g. Roe v. Wade) laws as they please. Was, say, William O. Douglas a political neutral who spent much of his time studying the desires of the Founding Fathers? Hardly. Does Elena Kagan take an objective or neutral view of, say, abortion? Of course not. So why doesn't somebody do something? In the Age of Obama, aren't we all supposed to favor change?

In the fourth place, the Court makes its decisions in private. The justices are not only unelected but work in secret. Shouldn't the deliberations be on C-Span? What sort of republic would willingly permit such undemocratic procedure? The media, always eager to crusade, says nothing. Why not?

Fifth, the Court is without term limits. Today, Justices Bryer, Ginsburg, Kennedy, and Scalia are over 70. John Paul Stevens retired recently at 90. Why should membership on such a crucial body be for life?

The short answer (these are admittedly all short and partial answers) to the first question is simply that every nation and organization needs a person or a body of people that can settle issues once and for all, a place where, as Harry Truman put it, the buck stops. The alternative is chaos often followed by violence. While Americans want nothing to do with kings or emperors, we, too, need a source of final authority. Think of the mayhem that might well have occurred following the election of 2000 without a Supreme Court to halt the shenanigans going on in Florida. The Court continues to play this role because it works, and we are a practical people. We've had our Civil War and are now content (at least the vast majority of us) to work together as a single nation under law, as defined by the Supreme Court.

As for the second question, it seems clear that the entire process for selecting Court nominees is based on the elitist myth of "the best and the brightest." One would think that this concept had been discarded following the Kennedy-Johnson years, but it lives on from Boston to Washington DC and is especially strong in the major mass media. If Elena Kagan had graduated from, say, the University of Oregon, she would not have been considered--no matter how liberal, brilliant, knowledgeable, or personable. By definition, to the inner ring she would have been a yokel.

Third, legal objectivity is a mixture of fantasy and rhetoric. The Right preaches fidelity to the Founding Fathers, claiming itself more objective than liberal opponents. The Left speaks constantly of "social justice" and "rights," pursues its own agenda, and rarely if ever admits that it is doing anything that clashes with reason, history, or the Constitution. While elitist, the process of membership on the Court is more about ideology than anything else. If you win the election and have the political power, you will get a Supreme Court Justice who shares your views. This has little or nothing to do with objectivity. We live by such myths. There appear to be no reasonable alternatives.

As for number four, there are very good reasons to demand public access to internal Supreme Court debate. But we fail to pursue them because of our desire to avoid contention and disharmony. The decisions themselves reveal a great deal of what was said in the deliberations, much of it in strong language. Again, we let the robed lawyers quarrel privately because the process works. We do not want to see the Wizard of Oz behind the curtain.

Fifth, term limits should be applied to all political offices. We don't achieve this popular goal because the politicos themselves would have to write the legislation and put themselves out of work. Court members do not see themselves as political, of course, and in any case they can point to Article III of the Constitution which fails to mention term limits. The Constitution could be amended to force justices to retire at a certain age. But we don't like to rock the boat. Our system works. For this same reason we have chosen not to hold another Constitutional Convention and straighten out such irrational matters as having two Senators from California and two from Rhode Island. Aberlour's Law number 44: "Inertia makes the world go 'round."  

So Elana Kagan goes to the Supreme Court, and all eyes are on the election of 2012. Politics defines law. Do you have a better, more practical suggestion?

Thomas C. Reeves writes from Wisconsin. Among his dozen books are Twentieth Century America: A Brief History, and biographies of John F. Kennedy, Joseph R. McCarthy, Fulton Sheen, Walter J. Kohler, Jr and Chester A. Arthur.



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