Thursday, February 25, 2016

The Supreme Court and the Election

The President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court." Article II. Section 2, of the US constitution couldn't be more explicit. If "originalism" and "textualism" were true schools of constitutional interpretation, their ostensible proponents would be vocal making this point and pushing for a quick filling of the current Supreme Court vacancy. But "originalism" and "textualism" typically go out the window when they conflict with the interests of a particular political party.

Of course, it is far from clear which political party will ultimately benefit from the current imbroglio about whether or not to fill the vacant seat on the Supreme Court. Those who want the presidential election to be a referendum on the future direction of the Court may well get their way, with either President Hillary Clinton or President Donald Trump selecting the next Justice around this time next year. That would perhaps be the most democratic outcome.

But, of course, whatever the Framers may have intended the Supreme Court to be, they certainly never intended it to be democratic. The House of Representatives was intended to be the one truly democratic branch of government. According to the then fashionable theory of "mixed constitution," the Senate and the Supreme Court were to be the aristocratic branches of government, chosen in ways which involved the mass of voters as indirectly as possible. That is no longer so true of the Senate, since the 17th Amendment made senators directly elected by the people. Justices of the Supreme Court, however, are not only appointed, but appointed for life. And these unelected and for all practical purposes unaccountable, life-time appointees have been endowed - not so much by the constitution as by the evolution of American political culture - with almost absolute power to undo the democratically expressed will of the people as enacted into laws by Congress.

That is the heart of the problem. A judiciary that is somewhat insulated from day-to-day popular opinion and political pressure makes good sense in so many ways. But a politically unaccountable judiciary that claims the kind of political power that the current Supreme Court exercises is another matter altogether. Aristocracy ostensibly means rule by the best. In practice, what society usually gets is what Aristotle considered aristocracy's degenerate form - oligarchy, rule by the rich.  More often than not, the Supreme Court could be more accurately described as representing not an aristocratic principle but an oligarchic one. That was the case in the 19th century when it supported slavery (e.g., Dred Scott). That was the case in the early 20th century, when the Court regularly struck down progressive labor legislation. It has continued to be the case in the 21st century (e.g., Citizens United).

Naturally, everyone can identify decisions he or she agrees with.  The Brown decision on May 17, 1954, was one of the major moral turning points in American history. Even that, however, represented a belated reversal of a bad 19th-century Court decision. And it could also be argued that, if Congress had done its proper job and vigorously enforced the 15th Amendment all along, neither decision would ever have been needed. Indeed, so often when the Supreme Court produces a laudable outcome, it is compensating for the failure of Congress to fulfill its responsibilities. In a political system so fundamental dysfunctional as ours has become, recourse to the judiciary is sometimes the only available remedy.

So the future direction of the Supreme Court will likely be a major issue in this election. If so, that should fire up the more ideological "base" voters in both parties, producing a higher turnout election - and an even more politically polarized Court. But should it? Should this election really be mainly about which party gets to control the Supreme Court? Should the Supreme Court have ever accumulated so much unaccountable undemocratic power that it matters so much which party controls it?

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