Uniting court — and country
The comedian Peter Cook once joked, “I could have been a judge, but I never had the Latin.” Instead, he became a coal miner. “They only ask one question. They say, ‘Who are you?’ And I got 75 percent for that.” As the laughter subsided, Cook added a satirical kicker. “Being a miner, as soon as you are too old and tired and sick and stupid to do the job properly, you have to go. Well, the very opposite applies with the judges.”
It seems that Supreme Court Justice Anthony Kennedy may have been listening to some of Cook’s old records. Ahead of this week’s landmark hearings in which the Supremes hear two cases in which they are being invited to decide whether same-sex marriages are constitutional, Kennedy made a sharp and surprising critique of the role the court has played in recent years in settling awkward matters that would have been far better decided by Congress. “A democracy,” he declared, “should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.”
It is a strange admission for a Supreme Court justice. Cook made fun of the fact that senior judges are mostly old and doddery, and the older and more doddery they become, the more detached they are from normal life. Many who believe that justice should be impartial welcome the rarefied atmosphere in which judges tend to live and make their decisions. Kennedy, meanwhile, is suggesting the opposite ‑ that if justices have to be brought in to decide issues that would better have been solved by Congress, they should be more of an age and closer to the backgrounds of the ordinary Americans who must live with their decisions.
Kennedy is not quite a turkey voting for Thanksgiving, perhaps. But his distaste at having to make decisions other parts of government cannot bring themselves to take is an indictment of a system of government that, after 250 years, has led to purposeless deadlock and stasis.
The same-sex marriage cases have also brought to the fore critical remarks about the court’s decision-making by another justice, Ruth Bader Ginsburg, ruminating on whether the 1973 decision granting women the constitutional right to an abortion was correct.
“It’s not that the judgment was wrong, but it moved too far, too fast,” she said. Conservatives have largely ignored Kennedy’s remarks, which condemned dysfunction in Congress, but have leapt upon those of Ginsburg ‑ or at least the last four words of her sentence, which serve their purpose.
Ginsburg’s point, as she made clear, was not that the court should have outlawed abortion but that by choosing to decide Roe v. Wade, rather than other related cases that may have allowed a more gentle, less abrupt introduction of legal abortions, the court’s decision had unnecessarily kept arguments over abortion alive for the last 40 years. She would have preferred, she said, that the crucial issue had been that making abortion illegal discriminated against women and inhibited gender equality.
Ginsburg also regrets that Roe v. Wade politicized a court that had otherwise been largely trusted by the people to be legally and politically impartial. “The Supreme Court’s decision,” she said, “was a perfect rallying point for people who disagreed with the notion that it should be a woman’s choice. They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges.”
While Ginsburg’s thinking out loud questions the wisdom of rulings by recent justices, Kennedy’s criticism is as much a condemnation of the Founding Fathers as the modern judges. The Founders, of course, all 18th century gentlemen of a similar background and education, are the ultimate example of “unelected people from a narrow background” making far-reaching rulings that have ever since cast doubt on democratic decisions made in Congress. The Founding Fathers believed, as did Montesquieu, that to prevent tyranny it is necessary to divide government between an elected legislature, an elected executive and an unelected independent judiciary.
It was the Founders who thereby sowed the seeds of the impotent gridlock in Washington today that passes for government. Perhaps they believed that the sort of people who became politicians would always rather get things done than twiddle their thumbs. They did not count on the unthinking absolutism of today’s foot-dragging, ideologically driven elected officials.
As the nation has become more deeply divided since the “culture wars” set off by the 1960s social revolution, so the court has found itself increasingly called upon to decide pivotal issues on a simple test of whether they are constitutional. That is, whether the Founding Fathers would have agreed with them.
As visionary as the Founders were, there are many aspects of modern life they plainly could not dream of ‑ such as the rejection by women, slaves, racial minorities and gays and lesbians of the second-class status allotted them by government.
Nonetheless, because today Congress, reflecting society’s deep divisions, cannot seem to decide much, it is the Founders whose minds must be second guessed by the Supreme Court. The result has been a series of questionable big decisions, such as the 2010 Citizens United v. Federal Election Commission ruling that allows anonymous money to swamp the political process; the Affordable Care Act, which obliges people on pain of law to buy a commercial product; and above all, perhaps, Bush v. Gore, a case so contentious, divisive and intellectually unsure that the justices ruled that their pronouncement should never be used as a precedent.
Little wonder that the court, which until the turn of the century was considered honest, impartial and trustworthy, has in the past decade plummeted in public esteem.
Can anything be done to restore the court to its previous preeminence as an impartial body employed only as a last resort, rather than an overt political body used to overrule a divided legislature? Not much and not easily. Not least because the court enjoys a rare form of Catch-22, in which it is its own judge and jury. It is likely to rule any attempt to alter its role, its makeup or its modus operandi as unconstitutional. The last time (1937) a president (Franklin D. Roosevelt) attempted to pack the court with his own people, as he was entitled to under the Constitution, he failed to take with him enough of the Senate and the bid miserably failed.
The court could improve its standing, however, by picking cases more carefully, to ensure that its judgments ring true to a majority of the people rather than legislating by verdict handed down from on high. That is what Ginsburg was suggesting.
If the court wishes to move closer to real life, as Kennedy suggests, it could institute term limits for membership, or agree on a custom whereby justices retire at a certain age. Congress could help, too, by giving a clear, unequivocal indication of what it believes the people want.
That is what appears to have influenced Chief Justice John Roberts in his decision to back the Affordable Care Act. It would have been too divisive and undemocratic to overturn a central piece of legislation that was promised by the winner in a presidential election and had subsequently received a clear majority in both House and Senate.
But the key to restoring confidence in the court, starting with the justices, is if the American people were to agree with each other more. That may merely mean waiting for the passage of time. What is evident from the swift turnaround in attitudes towards homosexuality in general, and gay marriage in particular, is that the pendulum of public opinion is still swinging in a permissive direction and that opposition to a more liberal, softer society is declining as the older, less tolerant generation grows even older and loosens its grip on the nation.
As the conservative sage George Will, hardly a progressive, has pointed out, “Quite literally, the opposition to gay marriage is dying.”
PHOTO (Top): Supreme Court justices in a group portrait in the East Conference Room at the Supreme Court Building in Washington, October 8, 2010. Seated from left to right in front row are: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg. Standing from left to right in back row are: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr., and Associate Justice Elena Kagan. REUTERS/Larry Downing
Photo (Insert): Associate Justice Anthony M. Kennedy October 8, 2010. REUTERS/Larry Downing